The Administrative Agent and Collateral Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoint Bank of America to serve as Administrative Agent and Collateral Agent under the Loan Documents, and authorize the Administrative Agent and Collateral Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any other Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable, shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable, (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) shall not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender or any Issuing Bank, any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their Affiliate, that is communicated to, obtained or in the possession of, the Administrative Agent, the Joint Bookrunners, the Lead Arrangers or any of their Related Parties in any capacity, except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent herein. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower, a Lender or an Issuing Bank. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person). The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign upon 30 days’ notice to the Lenders, the Issuing Banks and the Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower and the Required Lenders. Upon receipt of any such notice of resignation or upon such removal, the Required Lenders shall have the right, with the Borrower’s consent (unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be an Approved Bank with an office in New York, New York, or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 9.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent. Each Lender and each Issuing Bank expressly acknowledges that none of the Administrative Agent nor the Lead Arrangers or Joint Bookrunners has made any representation or warranty to it, and that no act by the Administrative Agent, the Lead Arrangers or Joint Bookrunners hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Lead Arrangers or Joint Bookrunners to any Lender or any Issuing Bank as to any matter, including whether the Administrative Agent, the Lead Arrangers or Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession. Each Lender and each Issuing Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners that it has, independently and without reliance upon the Administrative Agent, the Lead Arrangers, the Joint Bookrunners, any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Lead Arrangers, the Joint Bookrunners, any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing. Each Lender and each Issuing Bank represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or Loan Modification Offer pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date.

Appears in 3 contracts

Samples: First Lien Credit Agreement (First Advantage Corp), Credit Agreement (First Advantage Corp), First Lien Credit Agreement (First Advantage Corp)

The Administrative Agent and Collateral Agent. Each of the Lenders and ~~the~~ each Issuing ~~Banks~~ Bank hereby irrevocably ~~appoint Bank of America to serve~~ appointed CIBC (and any successor Agent appointed as ~~Administrative~~ provided herein) as its agent and authorized CIBC (and any successor Agent ~~and Collateral Agent under the Loan Documents, and authorize the Administrative Agent and Collateral Agent~~ appointed as provided herein) to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative~~ Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Pursuant to the Existing Credit Agreement Agency Assignment Agreement, CIBC resigned as Agent and ~~Collateral~~ the Required Lenders irrevocably appointed DBTCA (and any successor Agent appointed as provided herein) as its agent and authorized DBTCA (and any successor Agent appointed as provided herein) to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~provisions of this Article are solely for the benefit of the Administrative Agent, the~~ Collateral ~~Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party~~ Agent shall have ~~any rights as~~ only those duties, obligations and responsibilities expressly specified in this Agreement and/or the Security Documents to which it is a ~~third~~ party ~~beneficiary of any such provisions~~(and no others shall be implied). The Person serving as the ~~Administrative~~ Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the ~~Administrative~~ Agent, and such Person and its Affiliates may accept deposits from, lend money ~~to, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Borrowers or any ~~other~~ Subsidiary or ~~other~~ any Affiliate ~~thereof~~ of any of the foregoing as if ~~such Person~~ it were not the ~~Administrative~~ Agent ~~hereunder and without any duty to account therefor to the Lenders~~hereunder. The ~~Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable, (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) shall not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender or any Issuing Bank, any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their Affiliate, that is communicated to, obtained or in the possession of, the Administrative Agent, the Joint Bookrunners, the Lead Arrangers or any of their Related Parties in any capacity, except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent herein. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower, a Lender or an Issuing Bank. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person). The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign upon 30 days’ notice to the Lenders, the Issuing Banks and the Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower and the Required Lenders. Upon receipt of any such notice of resignation or upon such removal, the Required Lenders shall have the right, with the Borrower’s consent (unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be an Approved Bank with an office in New York, New York, or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 9.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent. Each Lender and each Issuing Bank expressly acknowledges that none of the Administrative Agent nor the Lead Arrangers or Joint Bookrunners has made any representation or warranty to it, and that no act by the Administrative Agent, the Lead Arrangers or Joint Bookrunners hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Lead Arrangers or Joint Bookrunners to any Lender or any Issuing Bank as to any matter, including whether the Administrative Agent, the Lead Arrangers or Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession. Each Lender and each Issuing Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners that it has, independently and without reliance upon the Administrative Agent, the Lead Arrangers, the Joint Bookrunners, any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Lead Arrangers, the Joint Bookrunners, any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing. Each Lender and each Issuing Bank represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or Loan Modification Offer pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date.,

Appears in 2 contracts

Samples: Credit Agreement (1295728 Alberta ULC), Intercreditor Agreement (1295728 Alberta ULC)

The Administrative Agent and Collateral Agent. Each of the Lenders and the Issuing ~~Banks~~ Bank hereby irrevocably ~~appoint Bank of America to serve as Administrative Agent and Collateral Agent under the Loan Documents, and authorize~~ appoints the Administrative Agent as its agent hereunder and ~~Collateral~~ under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent ~~and Collateral Agent~~ by the terms ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~The provisions~~ Each of ~~this Article are solely for the benefit of the Administrative Agent, the Collateral Agent,~~ the Lenders and the Issuing ~~Banks,~~ Bank hereby irrevocably appoints the Collateral Agent as its agent hereunder and ~~none of Holdings,~~ under the ~~Borrower or any~~ other Loan ~~Party shall have any rights~~ Documents and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as ~~a third party beneficiary of any~~ are delegated to the Collateral Agent by the terms hereof or thereof, together with such ~~provisions~~actions and powers as are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money ~~to, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any ~~other~~ Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders~~hereunder. The Administrative ~~Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. In performing its functions and duties hereunder, the Administrative Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for the Borrower or any of its Subsidiaries. Without limiting the generality of the foregoing, ~~the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required ~~Lenders~~ Lenders, and (~~or such other number or percentage of the Lenders~~ c) except as ~~shall be necessary under the circumstances as provided~~ expressly set forth herein and in the other Loan Documents~~); provided that~~ , the Administrative Agent shall not ~~be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) shall not~~ have any duty ~~or responsibility~~ to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Lender or any Issuing Bank, any credit or other information concerning~~ the ~~business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties~~ Borrower or any of ~~their Affiliate,~~ its Subsidiaries that is communicated ~~to,~~ to or obtained ~~or in~~ by the ~~possession of, the~~ bank serving as Administrative ~~Agent, the Joint Bookrunners, the Lead Arrangers~~ Agent or any of ~~their Related Parties~~ its Affiliates in any capacity~~, except for notices, reports and other documents expressly required to be furnished to the Lenders by the~~ . The Administrative Agent ~~herein. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger~~ shall not be liable for any action taken or not taken by it with the consent or at the request of the Required ~~Lenders (~~Lenders, or such other ~~number or percentage of the~~ Lenders as ~~shall~~ may be ~~necessary,~~ required to give such instructions hereunder or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or~~ any other action in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings~~the Borrower or a Lender, ~~the Borrower, a Lender or an Issuing Bank. Neither~~ and the Administrative Agent ~~nor any Joint Bookrunner or Lead Arranger~~ shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~ herein or ~~the occurrence of any Default~~therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v~~) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi~~) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent~~. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof~~. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper ~~Person (including, if applicable, a Responsible Officer or Financial Officer of such~~ Person). The Administrative Agent also may ~~rely, and shall not incur any liability for relying,~~ rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person (including~~Person, ~~if applicable, a Financial Officer or a Responsible Officer of such Person)~~and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be either internal or external counsel or counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent. Notwithstanding anything herein to the contrary, with respect to each sub-agent appointed by Administrative Agent, (i) such sub-agent shall be a third party beneficiary under this Agreement with respect to all such rights, benefits and privileges (including exculpatory rights and rights to indemnification) and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such rights, benefits and privileges (including exculpatory rights and rights to indemnification) directly, without the consent or joinder of any other Person, against any or all of parties and the Lenders, (ii) such rights, benefits and privileges (including exculpatory rights and rights to indemnification) shall not be modified or amended without the consent of such sub-agent, and (iii) such sub-agent shall ~~apply~~ only have obligations to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent and not to any Obligor, Lender or any other Person and no Obligor, Lender or any other Person shall have any rights, directly or indirectly, as ~~provided in this paragraph~~a third party beneficiary or otherwise, ~~the~~ against such sub-agent. The Administrative Agent may resign ~~upon 30 days’ notice to~~ at any time by notifying the Lenders, the Issuing ~~Banks~~ Bank and the Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower and the Required Lenders. Upon ~~receipt of~~ any such ~~notice of resignation or upon such removal~~resignation, the Required Lenders shall have the right, with the ~~Borrower’s~~ consent of the Borrower not to be unreasonably withheld or delayed (~~unless~~ or, if an Event of Default ~~under Section 7.01(a), (b), (h) or (i)~~ has occurred and is ~~continuing~~continuing in consultation with the Borrower), to appoint a successor~~, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States~~. If no ~~such~~ successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative ~~Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative~~ Agent, which shall be an Approved Bank with an office in New York, New York, or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal ’s resignation shall nonetheless become effective ~~in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable)~~ and (1) the retiring ~~or removed~~ Administrative Agent shall be discharged from its duties and obligations hereunder and ~~under~~ (2) the ~~other Loan Documents (except (i) that in~~ Required Lenders shall perform the ~~case~~ duties of ~~any collateral security held by~~ the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed (and ~~(ii) with respect to any outstanding payment obligations)~~ all payments and ~~(2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments,~~ communications ~~and determinations~~ provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, ) until such ~~time, if any,~~ time as the Required Lenders appoint a successor ~~Administrative Agent~~ agent as provided for ~~above~~above in this paragraph. Upon the acceptance of ~~a successor’s~~ its appointment as Administrative Agent ~~hereunder~~hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or ~~removed~~retired) Administrative Agent ~~(other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable),~~ and the retiring ~~or removed~~ Administrative Agent shall be discharged from ~~all of~~ its duties and obligations hereunder ~~and under the other Loan Documents~~ (if not already discharged therefrom as ~~set forth~~ provided above in this ~~Section~~paragraph). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the ~~retiring or removed~~ Administrative Agent’s resignation ~~or removal hereunder and under the other Loan Documents~~hereunder, the provisions of this Article and Section ~~9.04~~ 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while ~~the retiring or removed Administrative Agent~~ it was acting as Administrative Agent. ~~Each Lender and each~~ Any resignation by SunTrust as Administrative Agent pursuant to this Section shall also constitute its resignation as Issuing Bank ~~expressly acknowledges that none~~ and Swingline Lender. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the ~~Administrative Agent nor~~ rights, powers, privileges and duties of the ~~Lead Arrangers~~ retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or ~~Joint Bookrunners has made any representation or warranty to it~~under the other Loan Documents, and ~~that no act by~~ (c) the ~~Administrative Agent~~successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the ~~Lead Arrangers~~ time of such succession or ~~Joint Bookrunners hereafter taken, including any consent to, and acceptance of any assignment or review~~ make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Lead Arrangers or Joint Bookrunners to any Lender or any retiring Issuing Bank as with respect to ~~any matter, including whether the Administrative Agent, the Lead Arrangers or Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession~~such Letters of Credit. Each Lender ~~and each Issuing Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Lead Arrangers, the Joint Bookrunners,~~ Agent or any other Lender ~~or any Issuing Bank, or any of the Related Parties of any of the foregoing,~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis ~~of, appraisal of,~~ and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this ~~Agreement and to extend credit to the Borrower hereunder~~Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Lead Arrangers, the Joint Bookrunners,~~ Agent or any other Lender ~~or any Issuing Bank, or any of the Related Parties of any of the foregoing,~~ and based on such documents and information as it shall from time to time deem appropriate, continue to make its own ~~credit analysis, appraisals and~~ decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The Administrative Agent shall have no duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and ~~to make such investigations as it deems necessary to inform itself as to~~ the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing. Each Lender and each Issuing Bank represents and warrants that it is sophisticated Administrative Agent shall have no responsibility with respect to ~~decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it,~~ the accuracy of or the ~~Person exercising discretion in making its decision~~ completeness of any information provided to ~~make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities~~Lenders. Each Lender, by delivering its signature page to this Agreement or any Assignment and Assumption and funding ~~its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or~~ any Loan ~~Modification Offer pursuant to which it shall become a Lender hereunder,~~ shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be ~~delivered to, or be~~ approved by the Administrative Agent, Required Lenders or ~~satisfactory to~~Lenders. Except as otherwise provided in Section 9.02(b) or (c) of this Agreement or the Security Documents, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender, the Administrative Agent shall not (except as provided herein or in the Security Documents) release all or substantially all of the Collateral or otherwise terminate all or substantially all of the Liens under any Security Document providing for collateral security, agree to additional obligations being secured by all or substantially all of such collateral security (except in connection with securing additional obligations equally and ratably with the Loans and other obligations hereunder), alter the relative priorities of the obligations entitled to the benefits of the Liens created under the Security Documents with respect to all or substantially all of the Collateral, except that no such consent shall be required, and the Administrative Agent is hereby authorized, to (1) release any Lien covering property (and to release any guarantor in connection therewith) that is the subject of either a disposition of property permitted hereunder or a disposition to which the Required Lenders have consented and (2) release from the Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) that is designated as a “Designated Subsidiary” in accordance with this Agreement or which ceases to be consolidated on the ~~Effective Date~~Borrower’s financial statements and is no longer required to be a “Subsidiary Guarantor”, so long as (A) after giving effect to any such release under this clause (2) (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers a certificate of a Financial Officer to such effect to the Administrative Agent and (B) either (I) the amount of any excess availability under the Borrowing Base immediately prior to such release is not diminished as a result of such release or (II) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount.

Appears in 2 contracts

Samples: Senior Secured Revolving Credit Agreement (Oaktree Finance, LLC), Senior Secured Revolving Credit Agreement (Oaktree Capital Group, LLC)

The Administrative Agent and Collateral Agent. Each of the Lenders and the Issuing Banks hereby irrevocably ~~appoint Bank of America to serve as Administrative Agent and Collateral Agent under the Loan Documents, and authorize~~ appoints the Administrative Agent as its agent and ~~Collateral~~ authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent ~~and Collateral Agent~~ by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~The provisions~~ Each of ~~this Article are solely for the benefit of the Administrative Agent, the Collateral Agent,~~ the Lenders and the Issuing ~~Banks~~Banks hereby irrevocably appoints the Collateral Agent as its collateral agent under the Security Agreement and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof or of the Security Agreement, together with such actions and ~~none of Holdings,~~ powers as are reasonably incidental thereto. All references to the ~~Borrower or any other Loan Party~~ Administrative Agent in this Article IX shall ~~have any rights~~ be deemed to also include and refer to the Collateral Agent in its capacity as ~~a third party beneficiary of any such provisions~~such. The ~~Person~~ bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such ~~Person~~ bank and its Affiliates may accept deposits from, lend money ~~to, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any ~~other~~ Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders~~hereunder. The Administrative ~~Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the ~~foregoing, the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ foregoing (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02)~~; provided that~~ , and (c) except as expressly set forth herein, the Administrative Agent shall not ~~be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) shall not~~ have any duty ~~or responsibility~~ to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Lender or any Issuing Bank, any credit or other information concerning~~ the ~~business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties~~ Borrower or any of ~~their Affiliate,~~ its Subsidiaries that is communicated ~~to,~~ to or obtained ~~or in~~ by the ~~possession of, the~~ bank serving as Administrative ~~Agent, the Joint Bookrunners, the Lead Arrangers~~ Agent or any of ~~their Related Parties~~ its Affiliates in any capacity~~, except for notices, reports and other documents expressly required to be furnished to the Lenders by the~~ . The Administrative Agent ~~herein. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger~~ shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings~~the Borrower or a Lender, ~~the Borrower, a Lender or an Issuing Bank. Neither~~ and the Administrative Agent ~~nor any Joint Bookrunner or Lead Arranger~~ shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document or the occurrence of any Default~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v~~) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi~~) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent ~~or satisfaction of any condition that expressly refers~~ shall take such action (subject to Section 10.02(b) hereof and subject to the ~~matters described therein being acceptable~~ right of the Administrative Agent to receive further assurances to its satisfaction from the Lenders of their indemnification obligations under Section 10.03(c) hereof against any and all liability and expense that may be incurred by it by reason of taking or ~~satisfactory~~ continuing to take such action) with respect to the notice of a Default or Event of Default referred to in the preceding paragraph as shall be directed by the Required Lenders; provided, that, unless and until the Administrative ~~Agent. Notwithstanding anything herein to the contrary~~Agent shall have received such directions, the Administrative Agent may (but shall not ~~have any liability arising~~ be obligated to) take such action, or refrain from ~~any confirmation~~ taking such action, with respect to such notice of Default or Event of Default as it shall deem advisable in the best interest of the ~~Revolving Exposure~~ Lenders except to the extent that this Agreement expressly requires that such action be taken, or not be taken, only with the ~~component amounts thereof~~consent or upon the authorization of the Required Lenders or all of the Lenders. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper ~~Person (including, if applicable, a Responsible Officer or Financial Officer of such~~ Person). The Administrative Agent also may ~~rely, and shall not incur any liability for relying,~~ rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person (including~~Person, ~~if applicable, a Financial Officer or a Responsible Officer of such Person)~~and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign upon 30 days’ notice to the Lenders, the Issuing Banks and the Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower and the Required Lenders. Upon receipt of any such notice of resignation or upon such removal, the Required Lenders shall have the right, with the Borrower’s consent (unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be an Approved Bank with an office in New York, New York, or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 9.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent. Each Lender and each Issuing Bank expressly acknowledges that none of the Administrative Agent nor the Lead Arrangers or Joint Bookrunners has made any representation or warranty to it, and that no act by the Administrative Agent, the Lead Arrangers or Joint Bookrunners hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Lead Arrangers or Joint Bookrunners to any Lender or any Issuing Bank as to any matter, including whether the Administrative Agent, the Lead Arrangers or Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession. Each Lender and each Issuing Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners that it has, independently and without reliance upon the Administrative Agent, the Lead Arrangers, the Joint Bookrunners, any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Lead Arrangers, the Joint Bookrunners, any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing. Each Lender and each Issuing Bank represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or Loan Modification Offer pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date.Administrative

Appears in 1 contract

Samples: Revolving Credit Agreement (Smithfield Foods Inc)

The Administrative Agent and Collateral Agent. Each of the Lenders and the Issuing ~~Banks~~ Bank hereby irrevocably ~~appoint Bank of America~~ appoints Citicorp North America, Inc. to serve as Administrative Agent and Collateral Agent under the Loan Documents, and ~~authorize~~ authorizes the Administrative Agent and Collateral Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing ~~Banks~~Bank, and none of ~~Holdings,~~ the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any other Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative ~~Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, ~~the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty ~~or responsibility~~ to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower, any ~~Lender~~ other Subsidiary or any ~~Issuing Bank, any credit or~~ other ~~information concerning the business, prospects, operations, property, financial and other condition or creditworthiness~~ Affiliate of any of the ~~Loan Parties~~ foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of ~~their Affiliate, that is communicated to, obtained or in the possession of, the Administrative Agent, the Joint Bookrunners, the Lead Arrangers or any of their Related Parties~~ its Affiliates in any capacity~~, except for notices, reports and other documents expressly required to be furnished to the Lenders by the~~ . The Administrative Agent ~~herein. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger~~ shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings,~~ the Borrower, a Lender or an Issuing ~~Bank. Neither~~ Bank and the Administrative Agent ~~nor any Joint Bookrunner or Lead Arranger~~ shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person). The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign upon 30 days’ notice to the Lenders, the Issuing Banks and the Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower and the Required Lenders. Upon receipt of any such notice of resignation or upon such removal, the Required Lenders shall have the right, with the Borrower’s consent (unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be an Approved Bank with an office in New York, New York, or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation 125 Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 9.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent. Each Lender and each Issuing Bank ~~expressly~~ acknowledges that none of the Administrative Agent nor the Lead Arrangers or Joint Bookrunners has made any representation or warranty to it, and that no act by the Administrative Agent, the Lead Arrangers or Joint Bookrunners hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Lead Arrangers or Joint Bookrunners to any Lender or any Issuing Bank as to any matter, including whether the Administrative Agent, the Lead Arrangers or Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession. Each Lender and each Issuing Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners that it has, independently and without reliance upon the Administrative Agent, ~~the Lead Arrangers, the~~ any Joint ~~Bookrunners,~~ Bookrunner or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis ~~of, appraisal of,~~ and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this ~~Agreement and to extend credit to the Borrower hereunder~~Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, ~~the Lead Arrangers, the~~ any Joint ~~Bookrunners,~~ Bookrunner or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own ~~credit analysis, appraisals and~~ decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing. Each Lender and each Issuing Bank represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or Loan Modification Offer pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Lender shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Lenders in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Lenders at such sale or other disposition. Each Lender, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations, to have agreed to the foregoing provisions. Notwithstanding anything herein to the contrary, neither any Joint Bookrunner nor any Person named on the cover page of this Agreement as a Lead Arranger shall have any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder, including under Section 9.03, fully as if named as an indemnitee or indemnified person therein and irrespective of whether the indemnified losses, claims, damages, liabilities and/or related expenses arise out of, in connection with or as a result of matters arising prior to, on or after the effective date of any Loan Document. Each Lender party to this Agreement hereby appoints the Administrative Agent and Collateral Agent to act as its agent under and in connection with the relevant Security Documents. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders or Affiliated Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (a) be obligated to ascertain, monitor or inquire as to whether any Lender or participant or prospective Lender or participant is a Disqualified Lender or Affiliated Lender or (b) have any liability with respect to or arising out of any assignment or participation of Loans or Commitments, or disclosure of confidential information, to any Disqualified Lender or Affiliated Lender. All provisions of this Article VIII applicable to the Administrative Agent shall apply to the Collateral Agent and the Collateral Agent shall be entitled to all the benefits and indemnities applicable to the Administrative Agent under this Agreement.

Appears in 1 contract

Samples: Intercreditor Agreement (Amc Entertainment Holdings, Inc.)

The Administrative Agent and Collateral Agent. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably ~~appoint Bank of America to serve~~ appoints the JPMorgan Chase Bank, N.A. as Administrative Agent and Collateral Agent hereunder and under ~~the~~ each other Loan ~~Documents~~Document, and ~~authorize~~ each of the ~~Administrative Agent~~ Lenders authorizes each of the Agents to enter into the Intercreditor Agreement on behalf of such Lender (each Lender hereby agreeing to be bound by the terms of the Intercreditor Agreement as if it were a party thereto) and ~~Collateral Agent~~ to take such actions on its behalf and on behalf of the Holders of Secured Obligations and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms hereof and ~~Collateral Agent by~~ the terms of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent ~~hereunder~~ shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such ~~Person~~ bank and its Affiliates may accept deposits from, lend money ~~to, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any ~~other~~ Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders~~hereunder. ~~The Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ No Agent shall ~~not~~ have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, ~~the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ (a) no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall ~~not~~ have any duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that ~~the Administrative~~ such Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth herein, no Agent shall ~~not~~ have any duty ~~or responsibility~~ to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Lender or any Issuing Bank, any credit or other information concerning~~ the ~~business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties~~ Borrower or any of ~~their Affiliate,~~ its Subsidiaries that is communicated ~~to,~~ to or obtained ~~or in~~ by the ~~possession of, the Administrative Agent, the Joint Bookrunners, the Lead Arrangers~~ bank serving as either Agent or any of ~~their Related Parties~~ its Affiliates in any capacity~~, except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative~~ . No Agent ~~herein. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger~~ shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings~~the Borrower or a Lender, ~~the Borrower, a Lender or an Issuing Bank. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger~~ and neither shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document or the occurrence of any Default~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v~~) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi~~) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent or ~~satisfaction~~ (vi) the perfection or priority of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the ~~Revolving Exposure or~~ Liens on any of the ~~component amounts thereof~~Collateral. The ~~Administrative Agent~~ Agents shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper ~~Person (including, if applicable, a Responsible Officer or Financial Officer of such~~ Person). The ~~Administrative Agent~~ Agents also may ~~rely, and shall not incur any liability for relying,~~ rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person (including~~Person, ~~if applicable, a Financial Officer or a Responsible Officer of such Person)~~and shall not incur any liability for relying thereon. The ~~Administrative Agent~~ Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Either Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more ~~sub-agents~~ subagents appointed by ~~the Administrative~~ such Agent. The ~~Administrative Agent~~ Agents and any such ~~sub-agent~~ subagent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such ~~sub-agent~~ subagent and to the Related Parties of the ~~Administrative Agent~~ Agents and any such ~~sub-agent~~subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign ~~upon 30 days’ notice to~~ at any time by notifying the ~~Lenders, the Issuing Banks~~ Lenders and the Borrower. ~~If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the~~ The Administrative Agent may be removed as at any time with or without cause by written notice received by the Administrative Agent ~~hereunder at the request of~~ from the Borrower and the Required Lenders. Upon ~~receipt of~~ any such ~~notice of~~ resignation or ~~upon such~~ removal, the Required Lenders shall have the right, with the consent of the Borrower’s , which consent ~~(unless an~~ shall not be unreasonably withheld or delayed, to appoint a successor; provided, that if any Event of Default ~~under Section 7.01(a), (b), (h) or (i)~~ has occurred and is continuing), ~~to appoint a successor, which~~ no consent of the Borrower shall be ~~a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States~~required. If no ~~such~~ successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the ~~retiring Administrative Agent gives notice of its~~ such removal or resignation, then the retiring or removed Administrative Agent ~~may (but shall not be obligated to)~~ may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent, which shall be an Approved Bank with an office in New York, New York, or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative~~ Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower; provided, ~~appoint a successor. If~~ that if an Event of Default has occurred and is continuing, no ~~such successor shall have been so appointed by~~ consent of the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent Borrower shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for aboverequired. Upon the acceptance of ~~a successor’s~~ its appointment as Administrative Agent ~~hereunder~~hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring ~~(or removed)~~ Administrative Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable)Agent, and the retiring ~~or removed~~ Administrative Agent shall be discharged from ~~all of~~ its duties and obligations ~~hereunder and under the other Loan Documents as set forth in this Section~~hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the ~~retiring or removed~~ Administrative Agent’s 's resignation or removal ~~hereunder and under the other Loan Documents~~hereunder, the provisions of this Article and Section ~~9.04~~ 9.03 shall continue in effect for the benefit of such retiring ~~or removed~~ Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while ~~the retiring or removed Administrative Agent~~ it was acting as Administrative Agent. Each Lender ~~and each Issuing Bank expressly~~ acknowledges that none of the Administrative Agent nor the Lead Arrangers or Joint Bookrunners has made any representation or warranty to it, and that no act by the Administrative Agent, the Lead Arrangers or Joint Bookrunners hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Lead Arrangers or Joint Bookrunners to any Lender or any Issuing Bank as to any matter, including whether the Administrative Agent, the Lead Arrangers or Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession. Each Lender and each Issuing Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners that it has, independently and without reliance upon ~~the Administrative Agent, the Lead Arrangers, the Joint Bookrunners,~~ either Agent or any other Lender ~~or any Issuing Bank, or any of the Related Parties of any of the foregoing,~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis ~~of, appraisal of,~~ and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this ~~Agreement and to extend credit to the Borrower hereunder~~Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Lead Arrangers, the Joint Bookrunners, any other Lender or any Issuing Bank, or any None of the ~~Related Parties of any of the foregoing~~Lenders, ~~and based on such documents and information as it shall from time to time deem appropriate~~if any, ~~continue to make its own credit analysis, appraisals and decisions~~ identified in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a ~~Lender~~ Co-Syndication Agent shall have any right, power, obligation, liability, responsibility or ~~Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing~~ duty under this Agreement other ~~facilities set forth herein as may be~~ than those applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender ~~and each Issuing Bank represents and warrants that it is sophisticated~~ hereby makes the same acknowledgments with respect to ~~decisions~~ the relevant Lenders in their capacity as Co-Syndication Agents as it makes with respect to ~~make~~the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender in accordance with Section 9.08, ~~acquire and/or hold commercial loans and~~ the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or with respect to ~~provide other facilities set forth herein~~any Loan Document, without the prior written consent of the Required Lenders or, as may be ~~applicable to such Lender~~ provided in this Agreement or ~~such Issuing Bank~~the other Loan Documents, with the consent of the Administrative Agent. The Lenders are not partners or co-venturers, and ~~either it~~no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the ~~Person exercising discretion in making its decision~~ Administrative Agent) authorized to ~~make~~act for, ~~acquire and/or hold~~ any other Lender. The Agents shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such ~~commercial loans~~ principal or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender, by delivering its signature page to this Agreement interest has become due and ~~funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or Loan Modification Offer~~ payable pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the ~~Administrative Agent or the Lenders on the Effective Date~~terms of this Agreement.

Appears in 1 contract

Samples: Loan Agreement (Efunds Corp)

The Administrative Agent and Collateral Agent. Each of the Lenders and the Issuing ~~Banks~~ Bank hereby irrevocably ~~appoint Bank of America to serve as~~ appoints the Administrative Agent as its agent hereunder and under the other Loan Documents and appoints JPMCB as the Collateral Agent under the ~~Loan Documents~~Guarantee and Security Agreement, and ~~authorize~~ authorizes the Administrative Agent and Collateral Agent to take such actions on its Revolving Credit Agreement behalf and to exercise such powers as are delegated to the Administrative Agent and Collateral ~~Agent~~ Agent, as applicable, by the terms ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money ~~to, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any ~~other~~ Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders~~hereunder. The Administrative ~~Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, ~~the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required ~~Lenders~~ Lenders, and (~~or such other number or percentage of the Lenders~~ c) except as ~~shall be necessary under the circumstances as provided~~ expressly set forth herein and in the other Loan Documents~~); provided that~~ , the Administrative Agent shall not ~~be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) shall not~~ have any duty ~~or responsibility~~ to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Lender or any Issuing Bank, any credit or other information concerning~~ the ~~business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties~~ Borrower or any of ~~their Affiliate,~~ its Subsidiaries that is communicated ~~to,~~ to or obtained ~~or in~~ by the ~~possession of, the~~ bank serving as Administrative ~~Agent, the Joint Bookrunners, the Lead Arrangers~~ Agent or any of ~~their Related Parties~~ its Affiliates in any capacity~~, except for notices, reports and other documents expressly required to be furnished to the Lenders by the~~ . The Administrative Agent ~~herein. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger~~ shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings~~the Borrower or a Lender, ~~the Borrower, a Lender or an Issuing Bank. Neither~~ and the Administrative Agent ~~nor any Joint Bookrunner or Lead Arranger~~ shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~ herein or ~~the occurrence of any Default~~therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v~~) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi~~) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent~~. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof~~. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper ~~Person (including, if applicable, a Responsible Officer or Financial Officer of such~~ Person). The Administrative Agent also may ~~rely, and shall not incur any liability for relying,~~ rely upon Revolving Credit Agreement any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person (including~~Person, ~~if applicable, a Financial Officer or a Responsible Officer of such Person)~~and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the~~ The Administrative Agent may resign ~~upon 30 days’ notice to~~ at any time by notifying the Lenders, the Issuing ~~Banks~~ Bank and the Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower and the Required Lenders. Upon ~~receipt of~~ any such ~~notice of resignation or upon such removal~~resignation, the Required Lenders shall have the right, with the ~~Borrower’s~~ consent of the Borrower not to be unreasonably withheld (~~unless~~ or, if an Event of Default ~~under Section 7.01(a), (b), (h) or (i)~~ has occurred and is ~~continuing~~continuing in consultation with the Borrower), to appoint a successor~~, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States~~. If no ~~such~~ successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative ~~Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative~~ Agent, which shall be an Approved Bank with an office in New York, New York, or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal ’s resignation shall nonetheless become effective ~~in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable)~~ and (1) the retiring ~~or removed~~ Administrative Agent shall be discharged from its duties and obligations hereunder and ~~under~~ (2) the ~~other Loan Documents (except (i) that in~~ Required Lenders shall perform the ~~case~~ duties of ~~any collateral security held by~~ the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed (and ~~(ii) with respect to any outstanding payment obligations)~~ all payments and ~~(2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments,~~ communications ~~and determinations~~ provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, ) until such ~~time, if any,~~ time as the Required Lenders appoint a successor ~~Administrative Agent~~ agent as provided for ~~above~~above in this paragraph. Upon the acceptance of ~~a successor’s~~ its appointment as Administrative Agent ~~hereunder~~hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or ~~removed~~retired) Administrative Agent ~~(other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable),~~ and the retiring ~~or removed~~ Administrative Agent shall be discharged from ~~all of~~ its duties and obligations hereunder ~~and under the other Loan Documents~~ (if not already discharged therefrom as ~~set forth~~ provided above in this ~~Section~~paragraph). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the ~~retiring or removed~~ Administrative Agent’s resignation ~~or removal hereunder and under the other Loan Documents~~hereunder, the provisions of this Article and Section ~~9.04~~ 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while ~~the retiring or removed Administrative Agent~~ it was acting as Administrative Agent. Each Lender ~~and each Issuing Bank expressly~~ acknowledges that none of the Administrative Agent nor the Lead Arrangers or Joint Bookrunners has made any representation or warranty to it, and that no act by the Administrative Agent, the Lead Arrangers or Joint Bookrunners hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Lead Arrangers or Joint Bookrunners to any Lender or any Issuing Bank as to any matter, including whether the Administrative Agent, the Lead Arrangers or Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession. Each Lender and each Issuing Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners that it has, independently and without reliance upon the Administrative ~~Agent, the Lead Arrangers, the Joint Bookrunners,~~ Agent or any other Lender ~~or any Issuing Bank, or any of the Related Parties of any of the foregoing,~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis ~~of, appraisal of,~~ and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this ~~Agreement and to extend credit to the Borrower hereunder~~Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently Revolving Credit Agreement and without reliance upon the Administrative ~~Agent, the Lead Arrangers, the Joint Bookrunners,~~ Agent or any other Lender ~~or any Issuing Bank, or any of the Related Parties of any of the foregoing,~~ and based on such documents and information as it shall from time to time deem appropriate, continue to make its own ~~credit analysis, appraisals and~~ decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder~~, and to make such investigations~~ . Except as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each Issuing Bank represents and warrants that (iotherwise provided in Section 9.02(b) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing. Each Lender and each Issuing Bank represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or Loan Modification Offer pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory toSection 9.02(c), the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender, the Administrative Agent shall not (except as provided herein or in the Security Documents) release all or substantially all of the Collateral or otherwise terminate all or substantially all of the Liens under any Security Document providing for collateral security, agree to additional obligations being secured by all or substantially all of such collateral security (except in connection with securing additional obligations equally and ratably with the Loans and other obligations hereunder in accordance with the Guarantee and Security Agreement), alter the relative priorities of the obligations entitled to the benefits of the Liens created under the Security Documents with respect to all or substantially all of the Collateral, except that no such consent shall be required, and the Administrative Agent is hereby authorized to (1) release any Lien covering property that is the subject of either a disposition of property permitted hereunder or a disposition to which the Required Lenders have consented and (2) release from the Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) that is designated as an “Unrestricted Subsidiary” in accordance with this Agreement or which ceases to be consolidated on the ~~Effective Date.~~Borrower’s financial statements and is no longer required to be a “Subsidiary Guarantor”, so long as in the case of this clause (2): (A) immediately after giving effect to any such release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers a certificate of a Financial Officer to such effect to the Administrative Agent, (B) either (I) the amount of any excess availability under the Borrowing Base immediately prior to such release is not diminished as a result of such release or (II) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount and (C) no Event of Default has occurred and is continuing. Revolving Credit Agreement

Appears in 1 contract

Samples: Senior Secured (Apollo Investment Corp)

The Administrative Agent and Collateral Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoint Bank of America to serve as Administrative Agent and Collateral Agent under the Loan Documents, and authorize the Administrative Agent and Collateral Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any other Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable, shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable, (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) shall not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender or any Issuing Bank, any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their Affiliate, that is communicated to, obtained or in the possession of, the Administrative Agent, the Joint Bookrunners, the Lead Arrangers or any of their Related Parties in any capacity, except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent herein. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower, a Lender or an Issuing Bank. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person). The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign upon 30 days’ notice to the Lenders, the Issuing Banks and the Borrower. If the Administrative Agent becomes a Defaulting ~~Lender~~ Lxxxxx and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower and the Required ~~Lenders~~Lxxxxxx. Upon receipt of any such notice of resignation or upon such removal, the Required Lenders shall have the right, with the Borrower’s consent (unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be an Approved Bank with an office in New York, New York, or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 9.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent. Each Lender and each Issuing Bank expressly acknowledges that none of the Administrative Agent nor the Lead Arrangers or Joint Bookrunners has made any representation or warranty to it, and that no act by the Administrative Agent, the Lead Arrangers or Joint Bookrunners hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Lead Arrangers or Joint Bookrunners to any Lender or any Issuing Bank as to any matter, including whether the Administrative Agent, the Lead Arrangers or Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession. Each Lender and each Issuing Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners that it has, independently and without reliance upon the Administrative Agent, the Lead Arrangers, the Joint Bookrunners, any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Lead Arrangers, the Joint Bookrunners, any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing. Each Lender and each Issuing Bank represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or Loan Modification Offer pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date.

Appears in 1 contract

Samples: First Lien Credit Agreement (First Advantage Corp)

The Administrative Agent and Collateral Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoint Royal Bank of ~~America~~ Canada to serve as Administrative Agent and Collateral Agent under the Loan Documents, and authorize the Administrative Agent and Collateral Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any other Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable, shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable, (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary under the circumstances as~~ expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) shall not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender or any Issuing Bank, any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their Affiliate, that is communicated to, obtained or in the possession of, the Administrative Agent, the Joint Bookrunners, the Lead Arrangers or any of their Related Parties in any capacity, except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent herein. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower, a Lender or an Issuing Bank. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person). The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign upon 30 days’ notice to the Lenders, the Issuing Banks and the Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower and the Required Lenders. Upon receipt of any such notice of resignation or upon such removal, the Required Lenders shall have the right, with the Borrower’s consent (unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be an Approved Bank with an office in New York, New York, or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 9.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent. Each Lender and each Issuing Bank expressly acknowledges that none of the Administrative Agent nor the Lead Arrangers or Joint Bookrunners has made any representation or warranty to it, and that no act by the Administrative Agent, the Lead Arrangers or Joint Bookrunners hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Lead Arrangers or Joint Bookrunners to any Lender or any Issuing Bank as to any matter, including whether the Administrative Agent, the Lead Arrangers or Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession. Each Lender and each Issuing Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners that it has, independently and without reliance upon the Administrative Agent, the Lead Arrangers, the Joint Bookrunners, any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Lead Arrangers, the Joint Bookrunners, any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing. Each Lender and each Issuing Bank represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or Loan Modification ~~Offer~~ Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date.

Appears in 1 contract

Samples: Agreement (EverCommerce Inc.)

The Administrative Agent and Collateral Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, Chemical Bank is hereby appointed to act as the ~~Issuing Banks hereby irrevocably appoint Bank of America to serve as~~ Administrative Agent ~~and Collateral Agent under the Loan Documents, and authorize~~ (which term for purposes of this Article shall be deemed to refer to the Administrative Agent and the Collateral Agent) of the Issuing Lender and the Lenders. Each of the Lenders, and each subsequent holder of any Loan by its acceptance thereof and the Issuing Lender hereby irrevocably authorize the Administrative Agent to take such actions on their behalf and to exercise such powers as are specifically delegated to the Administrative Agent ~~and Collateral Agent~~ by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~provisions of this Article are solely for~~ Administrative Agent shall have no implied duties or fiduciary duties to the ~~benefit~~ Lenders, or any obligation to the Lenders to take any action hereunder or under any of the other Loan Documents except any action specifically provided by the Loan Documents required to be taken by the Agent. The Administrative ~~Agent, the Collateral Agent,~~ Agent is hereby expressly authorized by the Lenders and the Issuing ~~Banks~~Lender, ~~and none of Holdings, the Borrower or~~ without hereby limiting any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any other Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable, shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicableimplied authority, (a) ~~shall not be subject~~ to ~~any fiduciary or~~ receive on behalf of the Lenders and the Issuing Lender all payments of principal of and interest on the Loans and LC Disbursements and all other ~~implied duties~~amounts due to the Lenders and the Issuing Lender hereunder, ~~regardless~~ and promptly to distribute to each Lender and the Issuing Lender its proper share of ~~whether a Default has occurred and is continuing,~~ each payment so received; (b) ~~shall not have~~ to give notice on behalf of each of the Lenders and the Issuing Lender to the Borrower of any ~~duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that~~ Event of Default specified in this Agreement of which the Administrative Agent ~~is required~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to ~~exercise as directed in writing~~ promptly distribute to each Lender and the Issuing Lender copies of all notices, financial statements and other materials delivered by the ~~Required Lenders~~ Borrower pursuant to this Agreement as received by the Administrative Agent (including notices of an occurrence of any Event of Default). Nothing in the preceding sentence shall be construed to relieve the Borrower of its obligation to furnish any notice, financial statement or ~~such~~ other ~~number or percentage of~~ materials directly to the Lenders as ~~shall be necessary under~~ required hereunder. Notwithstanding the ~~circumstances as provided in~~ use of the ~~Loan Documents); provided~~ defined terms "Administrative Agent" and "Collateral Agent," it is expressly understood and agreed that the Administrative Agent shall not ~~be required~~ have any fiduciary responsibilities to ~~take~~ any ~~action that, in its opinion, may expose~~ Lender by reason of this Agreement and that the Administrative Agent is merely acting as the representative of the Lenders with only those duties as are expressly set forth in this Agreement and the other Loan Documents. In its capacity as the Lenders' contractual representative, the Administrative Agent (i) does not assume any fiduciary duties to liability or that is contrary to any Loan Document or applicable law, and (c) shall not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender or any Issuing Bank, any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the ~~Loan Parties or any~~ Lenders, (ii) is a "representative" of ~~their Affiliate, that~~ the Lenders within the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is ~~communicated to, obtained or in the possession of~~acting as an independent contractor, the ~~Administrative Agent,~~ rights and duties of which are limited to those expressly set forth in this Agreement and the ~~Joint Bookrunners, the Lead Arrangers or any~~ other Loan Documents. Each of ~~their Related Parties in any capacity, except for notices, reports and other documents expressly required to be furnished to~~ the Lenders by agrees to assert no claim against the Administrative Agent ~~herein~~on any agency theory or any other theory of liability for breach of fiduciary duty, all of which claims each Lender waives. Neither the Administrative Agent nor any ~~Joint Bookrunner~~ of its affiliates, directors, officers, employees or ~~Lead Arranger~~ agents shall be liable as such for any action taken or omitted by any of them except for its, his or her own gross negligence or wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower or any Subsidiary Guarantor of any of the terms, conditions, covenants or agreements contained in any Loan Document. The Administrative Agent shall not ~~taken~~ be responsible to the Lenders or the holders of the Loans or the Issuing Lender for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of~~ inaction pursuant thereto shall be binding on all the Lenders ~~as shall be necessary, or as~~ and each subsequent holder of any Loan and the Issuing Lender. The Administrative Agent ~~shall believe~~ shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be ~~necessary, under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not~~ genuine and correct and to have ~~knowledge of any Default unless and until written notice thereof is given to~~ been signed or sent by the ~~Administrative Agent by Holdings, the Borrower, a Lender~~ proper Person or ~~an Issuing Bank~~Persons. Neither the Administrative Agent nor any ~~Joint Bookrunner~~ of its directors, officers, employees or ~~Lead Arranger~~ agents shall ~~not be responsible for or~~ have any ~~duty~~ responsibility to ~~ascertain~~ the Borrower or ~~inquire into (i)~~ any ~~statement, warranty~~ Subsidiary on account of the failure of or ~~representation made~~ delay in performance or breach by any Lender or the Issuing Lender of any of its obligations hereunder or to any Lender or to the Issuing Lender on account of the failure of or delay in performance or breach by any other Lender or the Issuing Lender or the Borrower or any Subsidiary Guarantor of any of their respective obligations hereunder or under any other Loan Document or in connection ~~with any Loan Document, (ii) the contents of any certificate, report~~ herewith or ~~other document delivered thereunder or in connection~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person). The Administrative Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders and the Issuing Lender hereby acknowledge that the Administrative Agent ~~may perform~~ shall be under no duty to take any ~~of and all its duties and exercise its rights and powers hereunder or under any other Loan Document~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by~~ it pursuant to the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Article~~ Agreement unless it shall ~~apply~~ be requested in writing to ~~any such sub-agent and to~~ do so by the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative AgentRequired Lenders. Subject to the appointment and acceptance of a successor ~~Administrative~~ Agent as provided ~~in this paragraph~~below, the Administrative Agent may resign ~~upon 30 days’ notice to~~ at any time by notifying the Lenders, the Issuing ~~Banks~~ Lender and the Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower and the Required Lenders. Upon ~~receipt of~~ any such ~~notice of resignation or upon such removal~~resignation, the Required Lenders shall have the ~~right, with the Borrower’s consent (unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing),~~ right to appoint a successor~~, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States~~. If no ~~such~~ successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring ~~Administrative~~ Agent gives notice of its resignation, then the retiring ~~Administrative~~ Agent ~~may (but shall not be obligated to)~~ may, on behalf of the Lenders and the Issuing ~~Banks~~Lender, appoint a successor ~~Administrative~~ Agent, which shall be ~~an Approved Bank~~ a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for abovebank. Upon the acceptance of ~~a successor’s~~ any appointment as ~~Administrative~~ Agent ~~hereunder~~hereunder by a successor bank, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring ~~(or removed) Administrative~~ Agent ~~(other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable),~~ and the retiring ~~or removed Administrative~~ Agent shall be discharged from ~~all of~~ its duties and obligations hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successorhereunder. After the ~~retiring or removed~~ Administrative Agent’s 's resignation ~~or removal hereunder and under the other Loan Documents~~hereunder, the provisions of this Article and ~~Section 9.04~~ Sections 6.11(d) and 10.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while ~~the retiring or removed Administrative Agent~~ it was acting as Agent. With respect to the Loans made by it hereunder, the Administrative Agent, in its individual capacity and not as Agent, shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Administrative Agent, and the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower, any Subsidiary or any Affiliate thereof as if the Administrative Agent were not the Administrative Agent. Each Lender and ~~each~~ the Issuing ~~Bank expressly acknowledges that none~~ Lender agree (a) to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder) of any expenses incurred for the benefit of the ~~Administrative Agent nor~~ Lenders and the ~~Lead Arrangers or Joint Bookrunners has made any representation or warranty to it, and that no act~~ Issuing Lender by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the ~~Lead Arrangers~~ Lenders and the Issuing Lender, that shall not have been reimbursed by the Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its affiliates, directors, officers, employees or ~~Joint Bookrunners hereafter taken~~agents, ~~including~~ on demand, in the amount of such pro rata share, from and against any ~~consent to~~and all liabilities, ~~and acceptance~~ taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any ~~assignment~~ kind or ~~review~~ nature whatsoever that may be imposed on, incurred by or asserted against it in its capacity as the Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrower; provided that no Lender shall be liable to the Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or wilful misconduct of the ~~affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the~~ Administrative ~~Agent, the Lead Arrangers or Joint Bookrunners to any Lender~~ Agent or any ~~Issuing Bank as to any matter~~of its affiliates, ~~including whether the Administrative Agent~~directors, ~~the Lead Arrangers~~ officers, employees or ~~Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession~~agents. Each Lender and ~~each~~ the Issuing ~~Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners~~ Lender acknowledge that ~~it has~~they have, independently and without reliance upon the Administrative Agent, ~~the Lead Arrangers, the Joint Bookrunners,~~ any other Lender ~~or any~~ and the Issuing ~~Bank, or any of the Related Parties of any of the foregoing,~~ Lender and based on such documents and information as ~~it has~~ they have deemed appropriate, made ~~its~~ their own credit analysis ~~of, appraisal of,~~ and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this ~~Agreement and to extend credit to the Borrower hereunder~~Agreement. Each Lender and ~~each~~ the Issuing ~~Bank~~ Lender also ~~acknowledges~~ acknowledge that it they will, independently and without reliance upon the Administrative ~~Agent, the Lead Arrangers, the Joint Bookrunners,~~ Agent or any other Lender ~~or any Issuing Bank, or any of the Related Parties of any of the foregoing,~~ and based on such documents and information as it they shall from time to time deem appropriate, continue to make ~~its~~ their own ~~credit analysis, appraisals and~~ decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing. Each Lender and each Issuing Bank represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or Loan Modification Offer pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date.

Appears in 1 contract

Samples: Credit Agreement (Foodbrands America Inc)

The Administrative Agent and Collateral Agent. Each of the Lenders and the Issuing ~~Banks~~ Bank hereby irrevocably ~~appoint Bank of America to serve as~~ appoints the Administrative Agent as its agent hereunder and under the other Loan Documents and appoints JPMCB as the Collateral Agent under the ~~Loan Documents~~Guarantee and Security Agreement, and ~~authorize~~ authorizes the Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent and Collateral ~~Agent~~ Agent, as applicable, by the terms ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money ~~to, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any ~~other~~ Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders~~hereunder. The Administrative ~~Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, ~~the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required ~~Lenders~~ Lenders, and (~~or such other number or percentage of the Lenders~~ c) except as ~~shall be necessary under the circumstances as provided~~ expressly set forth herein and in the other Loan Documents~~); provided that~~ , the Administrative Agent shall not ~~be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) shall not~~ have any duty ~~or responsibility~~ to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Lender or any Issuing Bank, any credit or other information concerning~~ the ~~business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties~~ Borrower or any of ~~their Affiliate,~~ its Subsidiaries that is communicated ~~to,~~ to or obtained ~~or in~~ by the ~~possession of, the~~ bank serving as Administrative ~~Agent, the Joint Bookrunners, the Lead Arrangers~~ Agent or any of ~~their Related Parties~~ its Affiliates in any capacity~~, except for notices, reports and other documents expressly required to be furnished to the Lenders by the~~ . The Administrative Agent ~~herein. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger~~ shall not be liable for any action taken or not taken Revolving Credit Agreement by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings~~the Borrower or a Lender, ~~the Borrower, a Lender or an Issuing Bank. Neither~~ and the Administrative Agent ~~nor any Joint Bookrunner or Lead Arranger~~ shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~ herein or ~~the occurrence of any Default~~therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v~~) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi~~) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent~~. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof~~. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper ~~Person (including, if applicable, a Responsible Officer or Financial Officer of such~~ Person). The Administrative Agent also may ~~rely, and shall not incur any liability for relying,~~ rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person (including~~Person, ~~if applicable, a Financial Officer or a Responsible Officer of such Person)~~and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the~~ The Administrative Agent may resign ~~upon 30 days’ notice to~~ at any time by notifying the Lenders, the Issuing ~~Banks~~ Bank and the Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower and the Required Lenders. Upon ~~receipt of~~ any such ~~notice of resignation or upon such removal~~resignation, the Required Lenders shall have the right, with the ~~Borrower’s~~ consent of the Borrower not to be unreasonably withheld (~~unless~~ or, if an Event of Default ~~under Section 7.01(a), (b), (h) or (i)~~ has occurred and is ~~continuing~~continuing in consultation with the Borrower), to appoint a successor~~, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States~~. If no ~~such~~ successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative ~~Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative~~ Agent, which shall be an Approved Bank with an office in New York, New York, or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal ’s resignation shall nonetheless become effective ~~in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable)~~ and (1) the Revolving Credit Agreement retiring ~~or removed~~ Administrative Agent shall be discharged from its duties and obligations hereunder and ~~under~~ (2) the ~~other Loan Documents (except (i) that in~~ Required Lenders shall perform the ~~case~~ duties of ~~any collateral security held by~~ the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed (and ~~(ii) with respect to any outstanding payment obligations)~~ all payments and ~~(2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments,~~ communications ~~and determinations~~ provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, ) until such ~~time, if any,~~ time as the Required Lenders appoint a successor ~~Administrative Agent~~ agent as provided for ~~above~~above in this paragraph. Upon the acceptance of ~~a successor’s~~ its appointment as Administrative Agent ~~hereunder~~hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or ~~removed~~retired) Administrative Agent ~~(other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable),~~ and the retiring ~~or removed~~ Administrative Agent shall be discharged from ~~all of~~ its duties and obligations hereunder ~~and under the other Loan Documents~~ (if not already discharged therefrom as ~~set forth~~ provided above in this ~~Section~~paragraph). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the ~~retiring or removed~~ Administrative Agent’s resignation ~~or removal hereunder and under the other Loan Documents~~hereunder, the provisions of this Article and Section ~~9.04~~ 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while ~~the retiring or removed Administrative Agent~~ it was acting as Administrative Agent. Each Lender ~~and each Issuing Bank expressly~~ acknowledges that none of the Administrative Agent nor the Lead Arrangers or Joint Bookrunners has made any representation or warranty to it, and that no act by the Administrative Agent, the Lead Arrangers or Joint Bookrunners hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Lead Arrangers or Joint Bookrunners to any Lender or any Issuing Bank as to any matter, including whether the Administrative Agent, the Lead Arrangers or Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession. Each Lender and each Issuing Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners that it has, independently and without reliance upon the Administrative ~~Agent, the Lead Arrangers, the Joint Bookrunners,~~ Agent or any other Lender ~~or any Issuing Bank, or any of the Related Parties of any of the foregoing,~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis ~~of, appraisal of,~~ and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this ~~Agreement and to extend credit to the Borrower hereunder~~Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Lead Arrangers, the Joint Bookrunners,~~ Agent or any other Lender ~~or any Issuing Bank, or any of the Related Parties of any of the foregoing,~~ and based on such documents and information as it shall from time to time deem appropriate, continue to make its own ~~credit analysis, appraisals and~~ decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder~~, and to make such investigations~~ . Except as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each Issuing Bank represents and warrants that (iotherwise provided in Section 9.02(b) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing. Each Lender and each Issuing Bank represents and warrants that it is sophisticated with respect to ~~decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it~~this Agreement, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender, by delivering its signature page to Section 9.02(c) of this Agreement or Section 10.03 of the Guarantee and ~~funding its Loans on~~ Security Agreement with respect to the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or Loan Modification Offer pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory toSecurity Documents, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender, the Administrative Agent shall not (except as provided herein or in the Security Documents) release all or substantially all of the Collateral or otherwise terminate all or substantially all of the Liens under any Security Document providing for collateral security, agree to additional obligations being secured by all or substantially all of such collateral security (except in connection with securing additional obligations equally and ratably with the Loans and other obligations hereunder in accordance with the Guarantee and Security Agreement), alter the relative priorities of the obligations entitled to the benefits of the Liens created under the Security Documents with respect to all or substantially all of the Collateral, except that no such consent shall be required, and the Administrative Agent is hereby authorized to (1) release any Lien covering property that is the subject of either a disposition of property permitted hereunder or a disposition to which the Required Lenders have consented and (2) release from the Guarantee and Security Agreement any “Subsidiary Guarantor” (and any Revolving Credit Agreement property of such Subsidiary Guarantor) that is designated as an “Unrestricted Subsidiary” in accordance with this Agreement or which ceases to be consolidated on the ~~Effective Date~~Borrower’s financial statements and is no longer required to be a “Subsidiary Guarantor”, so long as in the case of this clause (2): (A) immediately after giving effect to any such release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers a certificate of a Financial Officer to such effect to the Administrative Agent, (B) either (I) the amount of any excess availability under the Borrowing Base immediately prior to such release is not diminished as a result of such release or (II) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount and (C) no Event of Default has occurred and is continuing.

Appears in 1 contract

Samples: Senior Secured (Apollo Investment Corp)

The Administrative Agent and Collateral Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoint Royal Bank of ~~America~~ Canada to serve as Administrative Agent and Collateral Agent under the Loan Documents, and authorize the Administrative Agent and Collateral Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any other Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable, shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable, (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to 128 exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary under the circumstances as~~ expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) shall not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender or any Issuing Bank, any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their Affiliate, that is communicated to, obtained or in the possession of, the Administrative Agent, the Joint Bookrunners, the Lead Arrangers or any of their Related Parties in any capacity, except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent herein. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower, a Lender or an Issuing Bank. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person). The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign upon 30 days’ notice to the Lenders, the Issuing Banks and the Borrower. If the Administrative Agent becomes a Defaulting ~~Lender~~ Xxxxxx and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower and the Required ~~Lenders~~Xxxxxxx. Upon receipt of any such notice of resignation or upon such removal, the Required Lenders shall have the right, with the Borrower’s consent (unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be an Approved Bank with an office in New York, New York, or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). 129 If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 9.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent. Each Lender and each Issuing Bank expressly acknowledges that none of the Administrative Agent nor the Lead Arrangers or Joint Bookrunners has made any representation or warranty to it, and that no act by the Administrative Agent, the Lead Arrangers or Joint Bookrunners hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Lead Arrangers or Joint Bookrunners to any Lender or any Issuing Bank as to any matter, including whether the Administrative Agent, the Lead Arrangers or Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession. Each Lender and each Issuing Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners that it has, independently and without reliance upon the Administrative Agent, the Lead Arrangers, the Joint Bookrunners, any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Lead Arrangers, the Joint Bookrunners, any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing. Each Lender and each Issuing Bank represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or Loan Modification Offer pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date.

Appears in 1 contract

Samples: Credit Agreement (EverCommerce Inc.)

The Administrative Agent and Collateral Agent. Each of the Lenders and the Issuing Banks hereby irrevocably ~~appoint Bank of America to serve as~~ appoints the Administrative Agent as its agent hereunder and under the other Loan Documents and appoints JPMCB as the Collateral Agent under the ~~Loan Documents~~Guarantee and Security Agreement, and ~~authorize~~ authorizes the Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent and Collateral ~~Agent~~ Agent, as applicable, by the terms ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money ~~to, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any ~~other~~ Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders~~hereunder. The Administrative ~~Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, ~~the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required ~~Lenders~~ Lenders, and (~~or such other number or percentage of the Lenders~~ c) except as ~~shall be necessary under the circumstances as provided~~ expressly set forth herein and in the other Loan Documents~~); provided that~~ , the Administrative Agent shall not ~~be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) shall not~~ have any duty ~~or responsibility~~ to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Lender or any Issuing Bank, any credit or other information concerning~~ the ~~business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties~~ Borrower or any of ~~their Affiliate,~~ its Subsidiaries that is communicated ~~to,~~ to or obtained ~~or in~~ by the ~~possession of, the~~ bank serving as Administrative ~~Agent, the Joint Bookrunners, the Lead Arrangers~~ Agent or any of ~~their Related Parties~~ its Affiliates in any capacity~~, except for notices, reports and other documents expressly required to be furnished to the Lenders by the~~ . The Administrative Agent ~~herein. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger~~ shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~Holdings~~the Borrower or a Lender, ~~the Borrower, a Lender or an Issuing Bank. Neither~~ and the Administrative Agent ~~nor any Joint Bookrunner or Lead Arranger~~ shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~ herein or ~~the occurrence of any Default~~therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v~~) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi~~) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent~~. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof~~. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper ~~Person (including, if applicable, a Responsible Officer or Financial Officer of such~~ Person). The Administrative Agent also may ~~rely, and shall not incur any liability for relying,~~ rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person (including~~Person, ~~if applicable, a Financial Officer or a Responsible Officer of such Person)~~and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the~~ The Administrative Agent may resign ~~upon 30 days’ notice to~~ at any time by notifying the Lenders, the Issuing Banks and the Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower and the Required Lenders. Upon ~~receipt of~~ any such ~~notice of resignation or upon such removal~~resignation, the Required Lenders shall have the right, with the ~~Borrower’s~~ consent of the Borrower not to be unreasonably withheld (~~unless~~ or, if an Event of Default ~~under Section 7.01(a), (b), (h) or (i)~~ has occurred and is ~~continuing~~continuing in consultation with the Borrower), to appoint a successor~~, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States~~. If no ~~such~~ successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative ~~Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative~~ Agent, which shall be an Approved Bank with an office in New York, New York, or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal ’s resignation shall nonetheless become effective ~~in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable)~~ and (1) the retiring ~~or removed~~ Administrative Agent shall be discharged from its duties and obligations hereunder and ~~under~~ (2) the ~~other Loan Documents (except (i) that in~~ Required Lenders shall perform the ~~case~~ duties of ~~any collateral security held by~~ the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed (and ~~(ii) with respect to any outstanding payment obligations)~~ all payments and ~~(2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments,~~ communications ~~and determinations~~ provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, ) until such ~~time, if any,~~ time as the Required Lenders appoint a successor ~~Administrative Agent~~ agent as provided for ~~above~~above in this paragraph. Upon the acceptance of ~~a successor’s~~ its appointment as Administrative Agent ~~hereunder~~hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or ~~removed~~retired) Administrative Agent ~~(other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable),~~ and the retiring ~~or removed~~ Administrative Agent shall be discharged from ~~all of~~ its duties and obligations hereunder ~~and under the other Loan Documents~~ (if not already discharged therefrom as ~~set forth~~ provided above in this ~~Section~~paragraph). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the ~~retiring or removed~~ Administrative Agent’s resignation ~~or removal hereunder and under the other Loan Documents~~hereunder, the provisions of this Article and Section ~~9.04~~ 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while ~~the retiring or removed Administrative Agent~~ it was acting as Administrative Agent. Each Lender ~~and each Issuing Bank expressly~~ acknowledges that none of the Administrative Agent nor the Lead Arrangers or Joint Bookrunners has made any representation or warranty to it, and that no act by the Administrative Agent, the Lead Arrangers or Joint Bookrunners hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Lead Arrangers or Joint Bookrunners to any Lender or any Issuing Bank as to any matter, including whether the Administrative Agent, the Lead Arrangers or Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession. Each Lender and each Issuing Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners that it has, independently and without reliance upon the Administrative ~~Agent, the Lead Arrangers, the Joint Bookrunners,~~ Agent or any other Lender ~~or any Issuing Bank, or any of the Related Parties of any of the foregoing,~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis ~~of, appraisal of,~~ and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this ~~Agreement and to extend credit to the Borrower hereunder~~Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Lead Arrangers, the Joint Bookrunners,~~ Agent or any other Lender ~~or any Issuing Bank, or any of the Related Parties of any of the foregoing,~~ and based on such documents and information as it shall from time to time deem appropriate, continue to make its own ~~credit analysis, appraisals and~~ decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Except as otherwise provided in Section 9.02(b) with respect to this Agreement, or Section 9.02(c) of this Agreement or Section 10.03 of the Guarantee and ~~to make such investigations as it deems necessary to inform itself as~~ Security Agreement with respect to the ~~business~~Security Documents, ~~prospects~~the Administrative Agent may, ~~operations~~with the prior consent of the Required Lenders (but not otherwise), ~~property~~consent to any modification, ~~financial and other condition and creditworthiness~~ supplement or waiver under any of the Loan ~~Parties. Each Lender and each Issuing Bank represents and warrants that (i)~~ Documents, provided that, without the ~~Loan Documents set forth the terms~~ prior consent of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing. Each Lender and each Issuing Bank represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or Loan Modification Offer pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent shall not (except as provided herein or in the Security Documents) release all or substantially all of the Collateral or otherwise terminate all or substantially all of the Liens under any Security Document providing for collateral security, agree to additional obligations being secured by all or substantially all of such collateral security (except in connection with securing additional obligations equally and ratably with the Loans and other obligations hereunder in accordance with the Guarantee and Security Agreement), alter the relative priorities of the obligations entitled to the benefits of the Liens created under the Security Documents with respect to all or substantially all of the Collateral, except that no such consent shall be required, and the Administrative Agent is hereby authorized to (1) release any Lien covering property that is the subject of either a disposition of property permitted hereunder or a disposition to which the Required Lenders have consented and (2) release from the Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) that is designated as an “Unrestricted Subsidiary” in accordance with this Agreement or which ceases to be consolidated on the ~~Effective Date~~Borrower’s financial statements and is no longer required to be a “Subsidiary Guarantor”, so long as in the case of this clause (2): (A) immediately after giving effect to any such release (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Indebtedness) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers a certificate of a Financial Officer to such effect to the Administrative Agent, (B) either (I) the amount of any excess availability under the Borrowing Base immediately prior to such release is not diminished as a result of such release or (II) the Gross Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount and (C) no Event of Default has occurred and is continuing.

Appears in 1 contract

Samples: Senior Secured Revolving Credit Agreement (Apollo Investment Corp)

The Administrative Agent and Collateral Agent. Each of the Lenders and the Issuing ~~Banks~~ Bank hereby irrevocably ~~appoint Bank of America to serve~~ appoints the JPMorgan Chase Bank, N.A. as Administrative Agent and Collateral Agent hereunder and under ~~the~~ each other Loan ~~Documents~~Document, and ~~authorize~~ each of the ~~Administrative Agent~~ Lenders and ~~Collateral Agent~~ the Issuing Bank authorizes each of the Agents to enter into the Intercreditor Agreement on behalf of such Lender and the Issuing Bank (each Lender and the Issuing Bank hereby agreeing to be bound by the terms of the Intercreditor Agreement as if it were a party thereto) and to take such actions on its behalf and on behalf of the Holders of Secured Obligations and to exercise such powers as are delegated to the ~~Administrative Agent~~ Agents by the terms hereof and ~~Collateral Agent by~~ the terms of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent ~~hereunder~~ shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such ~~Person~~ bank and its Affiliates may accept deposits from, lend money ~~to, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any ~~other~~ Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders~~hereunder. ~~The Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ No Agent shall ~~not~~ have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, ~~the Administrative Agent, the Joint Bookrunners or the Lead Arrangers, as applicable,~~ (a) no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall ~~not~~ have any duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that ~~the Administrative~~ such Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth herein, no Agent shall ~~not~~ have any duty ~~or responsibility~~ to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Lender or any Issuing Bank, any credit or other information concerning~~ the ~~business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties~~ Borrower or any of ~~their Affiliate,~~ its Subsidiaries that is communicated ~~to,~~ to or obtained ~~or in~~ by the ~~possession of, the Administrative Agent, the Joint Bookrunners, the Lead Arrangers~~ bank serving as either Agent or any of ~~their Related Parties~~ its Affiliates in any capacity~~, except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative~~ . No Agent ~~herein. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger~~ shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~Holdings~~the Borrower or a Lender, ~~the Borrower, a Lender or an Issuing Bank. Neither the Administrative Agent nor any Joint Bookrunner or Lead Arranger~~ and neither shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered ~~thereunder~~ hereunder or in connection ~~therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document or the occurrence of any Default~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v~~) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vi~~) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative~~ such Agent or ~~satisfaction~~ (vi) the perfection or priority of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the ~~Revolving Exposure or~~ Liens on any of the ~~component amounts thereof~~Collateral. The ~~Administrative Agent~~ Agents shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper ~~Person (including, if applicable, a Responsible Officer or Financial Officer of such~~ Person). The ~~Administrative Agent~~ Agents also may ~~rely, and shall not incur any liability for relying,~~ rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person (including~~Person, ~~if applicable, a Financial Officer or a Responsible Officer of such Person)~~and shall not incur any liability for relying thereon. The ~~Administrative Agent~~ Agents may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Either Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more ~~sub-agents~~ subagents appointed by ~~the Administrative~~ such Agent. The ~~Administrative Agent~~ Agents and any such ~~sub-agent~~ subagent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such ~~sub-agent~~ subagent and to the Related Parties of the ~~Administrative Agent~~ Agents and any such ~~sub-agent~~subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign ~~upon 30 days’ notice to~~ at any time by notifying the Lenders, the Issuing ~~Banks~~ Bank and the Borrower. ~~If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the~~ The Administrative Agent may be removed as at any time with or without cause by written notice received by the Administrative Agent ~~hereunder at the request of~~ from the Borrower and the Required Lenders. Upon ~~receipt of~~ any such ~~notice of~~ resignation or ~~upon such~~ removal, the Required Lenders shall have the right, with the consent of the Borrower’s , which consent ~~(unless an~~ shall not be unreasonably withheld or delayed, to appoint a successor; provided, that if any Event of Default ~~under Section 7.01(a), (b), (h) or (i)~~ has occurred and is continuing), ~~to appoint a successor, which~~ no consent of the Borrower shall be ~~a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States~~required. If no ~~such~~ successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the ~~retiring Administrative Agent gives notice of its~~ such removal or resignation, then the retiring or removed Administrative Agent ~~may (but shall not be obligated to)~~ may, on behalf of the Lenders and the Issuing ~~Banks~~Bank, appoint a successor Administrative ~~Agent, which shall be an Approved Bank with an office in New York, New York, or an Affiliate of any such Approved Bank (the date upon which the retiring Administrative~~ Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower; provided, ~~appoint a successor. If~~ that if an Event of Default has occurred and is continuing, no ~~such successor shall have been so appointed by~~ consent of the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent Borrower shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for aboverequired. Upon the acceptance of ~~a successor’s~~ its appointment as Administrative Agent ~~hereunder~~hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring ~~(or removed)~~ Administrative Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable)Agent, and the retiring ~~or removed~~ Administrative Agent shall be discharged from ~~all of~~ its duties and obligations ~~hereunder and under the other Loan Documents as set forth in this Section~~hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the ~~retiring or removed~~ Administrative Agent’s 's resignation or removal ~~hereunder and under the other Loan Documents~~hereunder, the provisions of this Article and Section ~~9.04~~ 9.03 shall continue in effect for the benefit of such retiring ~~or removed~~ Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while ~~the retiring or removed Administrative Agent~~ it was acting as Administrative Agent. Each Lender ~~and each Issuing Bank expressly~~ acknowledges that none of the Administrative Agent nor the Lead Arrangers or Joint Bookrunners has made any representation or warranty to it, and that no act by the Administrative Agent, the Lead Arrangers or Joint Bookrunners hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent, the Lead Arrangers or Joint Bookrunners to any Lender or any Issuing Bank as to any matter, including whether the Administrative Agent, the Lead Arrangers or Joint Bookrunners have disclosed material information in their (or their Related Parties’) possession. Each Lender and each Issuing Bank represents to the Administrative Agent, the Lead Arrangers and the Joint Bookrunners that it has, independently and without reliance upon ~~the Administrative Agent, the Lead Arrangers, the Joint Bookrunners,~~ either Agent or any other Lender ~~or any Issuing Bank, or any of the Related Parties of any of the foregoing,~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis ~~of, appraisal of,~~ and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this ~~Agreement and to extend credit to the Borrower hereunder~~Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon ~~the Administrative Agent, the Lead Arrangers, the Joint Bookrunners,~~ either Agent or any other Lender ~~or any Issuing Bank, or any of the Related Parties of any of the foregoing,~~ and based on such documents and information as it shall from time to time deem appropriate, continue to make its own ~~credit analysis, appraisals and~~ decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document or any~~ related agreement or any document furnished hereunder or thereunder~~, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness~~ . None of the ~~Loan Parties. Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged~~ Lenders, if any, identified in ~~making, acquiring or holding commercial loans in the ordinary course and is entering into~~ this Agreement as a ~~Lender~~ Co-Syndication Agent shall have any right, power, obligation, liability, responsibility or ~~Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing~~ duty under this Agreement other ~~facilities set forth herein as may be~~ than those applicable to such Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each Issuing Bank agrees not to assert a claim in contravention of all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender ~~and each Issuing Bank represents and warrants that it is sophisticated~~ hereby makes the same acknowledgments with respect to ~~decisions~~ the relevant Lenders in their capacity as Co-Syndication Agents as it makes with respect to ~~make~~the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender, ~~acquire and/or hold commercial loans and~~ including the Issuing Banks, in accordance with Section 9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or with respect to ~~provide other facilities set forth herein~~any Loan Document, without the prior written consent of the Required Lenders or, as may be ~~applicable to such Lender~~ provided in this Agreement or ~~such~~ the other Loan Documents, with the consent of the Administrative Agent. The Lenders, including the Issuing ~~Bank~~Banks, are not partners or co-venturers, and ~~either it~~no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the ~~Person exercising discretion in making its decision~~ Administrative Agent) authorized to ~~make~~act for, ~~acquire and/or hold~~ any other Lender. The Agents shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan or any Letter of Credit after the date such ~~commercial loans~~ principal or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender, by delivering its signature page to this Agreement interest has become due and ~~funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment, Refinancing Amendment or Loan Modification Offer~~ payable pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the ~~Administrative Agent or the Lenders on the Effective Date~~terms of this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Efunds Corp)

Common use of The Administrative Agent and Collateral Agent Clause in Contracts