Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints BofA (or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, 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. Any Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 any Loan Party or any Subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the 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 exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as is necessary, or as the Administrative Agent believes in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent 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 hereunder or in connection with any Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent shall be entitled to rely upon, 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) that it believes to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. 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 and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article 8 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 the Administrative Agent. The Secured Parties agree that the Administrative Agent shall not be responsible to the Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative Agent may resign at any time by giving ten days’ written notice to the Lenders, the Issuing Banks and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be required. If no successor has been appointed as provided above and accepted such appointment within ten days after the retiring Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of a retirement, 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 meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8. Upon the acceptance of its appointment as Administrative Agent ▇▇▇▇▇▇▇▇▇ as a successor Administrative Agent, the successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the Borrower to any successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 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 action taken or omitted to be taken by any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their respective

Appears in 5 contracts

Sources: Credit Agreement (CCC Intelligent Solutions Holdings Inc.), Credit Agreement (CCC Intelligent Solutions Holdings Inc.), Credit Agreement (CCC Intelligent Solutions Holdings Inc.)

Agents. ~~Each of the Lenders and the Issuing Banks hereby irrevocably appoints BofA~~ (~~or any successor appointed pursuant hereto~~a) ~~as Administrative Agent and authorizes the Administrative Agent~~ Custodian is authorized under this Agreement to take such actions on its behalf, including execution of the other Loan Documents, 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. Any Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender employ sub-custodians and may ~~exercise the same~~ employ other suitable agents (“Subcustodian”), which may include affiliates of Custodian, such as ~~though it were not the Administrative Agent, and the term~~ ▇.▇. ▇▇▇▇▇▇ Securities LLC (“Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacityJPMS”). 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 any Loan Party or any Subsidiary The appointment of any ~~Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders acknowledge that,~~ agent pursuant to ~~such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or~~ this Section 3 shall not relieve Custodian of any of its ~~Affiliates (including information that may be subject to confidentiality~~ obligations ~~in favor of such Loan Party~~ or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the 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 exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as is necessary, or as the Administrative Agent believes in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent 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 hereunder or in connection with any Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party liabilities under this Agreement. ~~Each Secured Party agrees that~~ For the ~~Administrative Agent~~ avoidance of doubt, a Federal Reserve Bank maintaining a book-entry system, The Depository Trust Company and any other clearing corporation or agency (a “Securities Depository”) which it is or may become standard market practice to use for the comparison and settlement of trades in securities or other assets shall not be Subcustodians, agents or sub-contractors of Custodian for purposes of this Section 3 or otherwise. Additionally, any cash held in respect of those markets where Customer is required to have a cash account in its ~~sole discretion, but is under no obligation to, credit bid any~~ own name held directly with the relevant Subcustodian or Securities Depository will be held in that manner and not part of the ~~Secured Obligations~~ Cash Account (b) To the extent permitted by Applicable Law or generally accepted market practice, Custodian will require each SubCustodian to ~~purchase or retain or acquire any portion~~ identify in its own books that Financial Assets held at such Subcustodian by Custodian on behalf of ~~the Collateral. The Administrative Agent shall be entitled~~ its customers belong to ~~rely upon~~Customers of Custodian, 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) such that it ~~believes~~ is readily apparent that the Financial Assets do not belong to the Custodian or the SubCustodian. Custodian will exercise reasonable skill, care and diligence in the selection of any such Subcustodian and maintain an appropriate level of supervision over such Subcustodian and will make appropriate inquiries periodically to confirm that the obligations of such Subcustodian continue to be ~~genuine and to have been signed, sent or otherwise authenticated by the proper Person~~competently discharged. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice Anything herein to the contrary ~~from such Lender~~ notwithstanding, Custodian will be liable only for direct loss or ~~Issuing Bank prior~~ damage (subject to the ~~making~~ limitations in Section 15 below) arising out of: (i) the failure by a Subcustodian to use reasonable care in the provision of such Loan or the issuance of such Letter of Credit. 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 custodial services by it in accordance with the ~~advice~~ standards prevailing in the relevant market or from the fraud or wilful misconduct of such Subcustodian in the provision of custodial services by it; or (ii) the insolvency of any affiliated Subcustodian. (c) Subject to Section 3 (b) and Custodian’s duty to use reasonable care in the monitoring of a Subcustodian’s financial condition as reflected in its published financial statements and other publicly available financial information concerning it customarily reviewed by Custodian in its oversight process, Custodian will not be responsible for any losses (whether direct or indirect) incurred by Customer that result from the insolvency of any Subcustodian which is not a branch or an affiliated Subcustodian. (d) Custodian reserves the right to add, replace or remove Subcustodians. Custodian will give prompt notice of any such ~~counsel~~action, ~~accountants~~ which will be advance notice if practicable. Upon request by Customer, Custodian will identify the name, address and principal place of business of any Subcustodian and the name and address of the governmental agency or ~~experts~~other regulatory authority that supervises or regulates such Subcustodian. (e) Custodian may deposit Securities with, and hold Securities in any Securities Depository on such terms as such Securities Depository customarily operates and Customer will provide Custodian with such documentation or acknowledgements that Custodian may require to hold the Financial Assets in such Securities Depository. ~~The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any~~ Any agreement Custodian enters into with a Subcustodian for holding Custodian’s customers’ assets will provide that such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article 8 shall apply assets will not be subject 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 the Administrative Agent. The Secured Parties agree that the Administrative Agent shall not be responsible to the Secured Parties for the negligence right, charge, security interest, lien or ~~misconduct~~ claim of any ~~sub-agent except to the extent that a court of competent jurisdiction determines~~ kind in ~~a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection~~ favor of such ~~sub-agent. The Administrative Agent may resign at any time by giving ten days’ written notice to the Lenders~~Subcustodian or its creditors except a claim for payment for their safe custody or administration, the Issuing Banks and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be required. If no successor has been appointed as provided above and accepted such appointment within ten days after the retiring Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of cash deposits, except for liens or rights in favor of creditors of the Subcustodian arising under bankruptcy, insolvency or similar law, and that the beneficial ownership thereof will be freely transferable without the payment of money or value other than for safe custody or administration. Custodian shall be responsible for all claims for payment of fees for safe custody or administration so that no Subcustodian exercises any claim for such payment against Customer’s assets. Where a ~~retirement~~Subcustodian deposits Securities with a Securities Depository, Custodian will cause the Subcustodian to identify on its records as belonging to Custodian, as agent, the ~~retiring Administrative Agent may~~ Securities shown on the Subcustodian’s account at such Securities Depository. This Section 3 (e) will not apply to the extent of any special agreement or arrangement made by Customer with any particular Subcustodian. (f) Custodian is not responsible for the selection or monitoring of any Securities Depository and will not be liable for any act or omission by (or the insolvency of) any Securities Depository. In the event Customer incurs a loss due to the negligence, willful default, or insolvency of a Securities Depository, Custodian will make reasonable efforts, in its discretion, to seek recovery from the Securities Depository, but ~~shall~~ Custodian will not be obligated ~~to)~~to institute legal proceedings, ~~on behalf~~ file a proof of ~~the Lenders~~ claim in any insolvency proceeding, or take any similar action. With respect to foreign Securities Depositories, Custodian shall exercise reasonable care, prudence, and the Issuing Banks, appoint a successor Administrative Agent meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and diligence (i) to provide the ~~retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and~~ Customer with an analysis of the custody risks associated with maintaining assets with the foreign Securities Depository in advance of any transfer of assets to such foreign Securities Depository, to the extent reasonably practical under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligationscircumstances, ~~the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed)~~ and (ii) ~~all payments~~to monitor such custody risks on a continuing basis and promptly notify the Customer or its investment adviser, ~~communications~~ if so directed by the Customer, of any material change in such risks. (g) Custodian may use third party delivery services and ~~determinations required~~ providers of information regarding matters such as pricing, proxy voting, credit rating, corporate actions and class action litigation and use local agents to provide extraordinary services such as attendance at annual meetings of issuers of securities. Although Custodian will use reasonable care in the selection and retention of such third party providers and local agents, it will not be ~~made by, to~~ responsible for any errors or ~~through the Administrative Agent shall instead be~~ omissions made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above them in this Article 8. Upon the acceptance of its appointment as Administrative Agent ▇▇▇▇▇▇▇▇▇ as a successor Administrative Agent, the successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the Borrower to any successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 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 action taken or omitted to be taken by any of them while providing the relevant ~~Person was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement~~ information or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their respective services.

Appears in 5 contracts

Sources: Custody Agreement (AQR Funds), Custody Agreement (AQR Funds), Custody Agreement (AQR Funds)

Agents. Each of the ~~Lenders~~ Lenders, the Issuing Bank and the ~~Issuing Banks~~ other Agents hereby irrevocably ~~appoints BofA (or any successor appointed pursuant hereto)~~ appoint JPMorgan Chase Bank as Administrative ~~Agent~~ Agent, and ~~authorizes the Administrative~~ each of Dresdner Bank AG, New York and Grand Cayman Branches and The Royal Bank of Scotland plc as Syndication Agents, and authorize each such Agent to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to ~~the Administrative Agent~~ such Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the foregoing, the Administrative Agent is hereby authorized to execute and deliver the Intercreditor Agreement on behalf of each Lender and bind each Lender to the terms thereof as if each Lender were directly a party thereto. Further, each Lender hereby irrevocably appoints JPMorgan Chase Bank as Collateral Agent for the Lenders under the Intercreditor Agreement and the Security Instruments (as applicable). Any ~~Person~~ bank serving as ~~Administrative~~ an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and ~~the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless~~ such ~~Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 ~~any Loan Party~~ the Borrower or any Subsidiary ~~of any Loan Party~~ or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, has occurred and is ~~intended to create or reflect only an administrative relationship between independent contracting parties~~continuing, (b) ~~the Administrative~~ each Agent shall not have any duty to take any discretionary action or exercise any discretionary ~~power~~powers, except discretionary rights and powers ~~that are~~ expressly contemplated by the Loan Documents ~~and which the Administrative~~ that such Agent is required to exercise in writing ~~as directed~~ by the Required ~~Lenders or Required Revolving~~ Lenders (or such other number or percentage of the Lenders as shall be necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.02, or further, with respect to the Collateral Agent, such other number or percentage of Persons as necessary or required by the terms of the Intercreditor Agreement); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its ~~Restricted~~ Subsidiaries that is communicated to or obtained by the ~~Person~~ bank serving as ~~Administrative~~ such Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Each Agent shall not be liable ~~to the Lenders or any other Secured Party~~ for any action taken or not taken by it with the consent or at the request of the Required Lenders ~~or Required Revolving Lenders~~ (or such other number or percentage of the Lenders as ~~is necessary, or as the Administrative Agent believes in good faith~~ shall be ~~necessary,~~ necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross negligence or willful misconduct; PROVIDED, ~~as determined by the final judgment of a court of competent jurisdiction~~HOWEVER, ~~in connection with its duties expressly set forth herein~~THAT IT IS THE INTENTION OF THE PARTIES HERETO THAT EACH OF THE AGENTS BE INDEMNIFIED IN THE CASE OF ITS OWN NEGLIGENCE (OTHER THAN GROSS NEGLIGENCE), REGARDLESS OF WHETHER SUCH NEGLIGENCE IS SOLE OR CONTRIBUTORY, ACTIVE OR PASSIVE, IMPUTED, JOINT OR TECHNICAL. ~~The Administrative~~ Each Agent shall ~~not~~ be deemed not to have knowledge of any Default (other than, with respect to the Administrative Agent, knowledge of a Default of the types specified in clauses (a) or ~~Event~~ (b) of ~~Default~~ Article VIII) unless and until written notice thereof is given to ~~the Administrative~~ such Agent by the Borrower or ~~any~~ a Lender, and ~~the Administrative~~ such Agent 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 hereunder or in connection ~~with any Loan Document~~herewith, (iii) the performance or observance of any ~~covenant~~of the covenants, ~~agreement~~ agreements or other ~~term~~ terms or ~~condition~~ conditions set forth in any Loan ~~Document or the occurrence of any Default or Event of Default~~Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative such Agent~~, of, among other things, the upcoming lapse or expiration thereof~~. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent Agents shall be entitled to rely upon, 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) that~~ believed by it ~~believes~~ to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper Person. The ~~Administrative Agent~~ Agents also may rely upon any statement made to it orally or by telephone and believed by it to ~~have been~~ be made by the proper ~~Person~~ Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. 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~~ Any Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itsuch Agent. ~~The Administrative~~ Any Agent and any such sub-agent may perform any and all ~~of their respective~~ its duties and exercise ~~their respective~~ its rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article 8~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the Administrative~~ such Agent and any such sub-~~agent~~ 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 ~~the Administrative~~ an Agent. ~~The Secured Parties agree that~~ Subject to the appointment and acceptance of a successor Administrative Agent ~~shall not be responsible to~~ as provided in this paragraph, the Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative Agent may resign at any time by ~~giving ten days’ written notice to~~ notifying the Lenders, the Issuing ~~Banks~~ Bank and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon ~~receipt of~~ any such ~~notice of resignation or delivery of any such notice of removal~~resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld or delayed)~~Borrower, to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be requiredsuccessor. If no successor ~~has~~ shall have been so appointed ~~as provided above~~ by the Required Lenders and shall have accepted such appointment within ~~ten~~ 30 days after the retiring Administrative Agent gives notice of its ~~resignation or the Administrative Agent receives notice of removal~~resignation, then ~~(a) in the case of a retirement,~~ the retiring 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 meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent which shall be ~~discharged from its duties and obligations hereunder and under the other Loan Documents (except that~~ a bank with an office in ~~the case~~ Dallas, Texas, Houston, Texas or New York City, or an Affiliate of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8bank. Upon the acceptance of its appointment as Administrative Agent ~~▇▇▇▇▇▇▇▇▇ as~~ hereunder by a successor, such successor ~~Administrative Agent, the successor Administrative Agent~~ shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring~~ Administrative Agent), and the retiring ~~or removed~~ Administrative Agent shall be discharged from its duties and obligations ~~hereunder (other than its obligations under Section 9.13 hereof)~~hereunder. The fees payable by the Borrower to ~~any~~ a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such ~~successor Administrative Agent~~successor. After the Administrative Agent’s 's resignation ~~or removal~~ hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 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 ~~action~~ actions taken or omitted to be taken by any of them while ~~the relevant Person~~ it was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender ~~or any of their Related Parties~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any ~~of their respective~~ document furnished hereunder or thereunder.

Appears in 3 contracts

Sources: Credit Agreement (Trinity Marine Products, Inc.), Credit Agreement (Trinity Industries Inc), Credit Agreement (Trinity Industries Inc)

Agents. Each of the ~~Lenders and~~ Lenders, the Issuing Banks and the other Agents hereby irrevocably appoints ~~BofA (or any successor appointed pursuant hereto)~~ JPMorgan Chase Bank, N.A., Toronto Branch, as the Administrative ~~Agent~~ Agent, The Toronto-Dominion Bank and Bank of Montreal, as the Co-Syndication Agents, and The Bank of Nova Scotia and ▇▇▇▇▇ Fargo Financial Corporation Canada, as the Co-Documentation Agents, and authorizes ~~the Administrative~~ each such Agent to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto; provided, however, that none of the Co-Syndication Agents or Co-Documentation Agents shall have or be deemed to have any liability hereunder or any duties or obligations under the Loan Documents. Any ~~Person~~ bank serving as ~~Administrative~~ an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless~~ such ~~Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 ~~any Loan Party~~ Borrower or any Subsidiary ~~of any Loan Party~~ or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Lenders acknowledge that, pursuant to such activities,~~ None of the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent Agents shall ~~not be under any obligation to provide such information to them. The Administrative Agent shall not~~ have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, has occurred and is ~~intended to create or reflect only an administrative relationship between independent contracting parties~~continuing, (b) ~~the Administrative~~ each Agent shall not have any duty to take any discretionary action or exercise any discretionary ~~power~~powers, except discretionary rights and powers ~~that are~~ expressly contemplated by the Loan Documents ~~and which the Administrative~~ that such Agent is required to exercise ~~in writing as directed by~~ following its receipt of written instructions from the ~~Required Lenders or Required Revolving~~ Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.2); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the~~ Parent, FST, Borrower or any of ~~its Restricted~~ their Subsidiaries that is communicated to or obtained by the ~~Person~~ bank serving as ~~Administrative~~ such Agent or any of its ~~Affiliates~~ Related Parties in any capacity. ~~The Administrative~~ Each Agent shall not be liable ~~to the Lenders or any other Secured Party~~ for any action taken or not taken by it with the consent or at the request of the ~~Required Lenders or Required Revolving~~ Majority Lenders (or such other number or percentage of the Lenders as ~~is necessary, or as the Administrative Agent believes in good faith~~ shall be ~~necessary,~~ necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.2) or in the absence of its own gross negligence or willful misconduct; PROVIDED, ~~as determined by the final judgment of a court of competent jurisdiction~~HOWEVER, ~~in connection with its duties expressly set forth herein~~THAT IT IS THE INTENTION OF THE PARTIES HERETO THAT EACH OF THE AGENTS BE INDEMNIFIED IN THE CASE OF ITS OWN NEGLIGENCE (OTHER THAN GROSS NEGLIGENCE), REGARDLESS OF WHETHER SUCH NEGLIGENCE IS SOLE OR CONTRIBUTORY, ACTIVE OR PASSIVE, IMPUTED, JOINT OR TECHNICAL. ~~The Administrative~~ Each Agent shall ~~not~~ be deemed not to have knowledge of any ~~Default or Event of~~ Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~the~~ Borrower or ~~any~~ a Lender, and ~~the Administrative~~ such Agent 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 ~~hereunder~~ thereunder or in connection ~~with any Loan Document~~therewith, (iii) the performance or observance of any ~~covenant~~of the covenants, ~~agreement~~ agreements or other ~~term~~ terms or ~~condition~~ conditions set forth in any Loan ~~Document or the occurrence of any Default or Event of Default~~Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative such Agent, of, among other things, the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent and the other Agents shall be entitled to rely upon, 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) that~~ believed by it ~~believes~~ to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper Person. The Administrative Agent and the other Agents also may rely upon any statement made to it orally or by telephone and believed by it to ~~have been~~ be made by the proper ~~Person~~ Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent and the other 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~~ Any Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itsuch Agent. ~~The Administrative~~ Any Agent and any such ~~sub-~~sub agent may perform any and all of ~~their respective~~ its duties and exercise ~~their respective~~ its rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article 8~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the Administrative~~ such Agent and any such sub-~~agent~~ 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 ~~the Administrative~~ an Agent. ~~The Secured Parties agree that~~ Subject to the appointment and acceptance of a successor or Administrative Agent ~~shall not be responsible to~~ as provided in this paragraph, the Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative Agent may resign at any time by ~~giving ten days’ written notice to~~ notifying the ~~Lenders~~Lenders and Borrower. Upon any such resignation, the Issuing Banks and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the Required Majority Lenders shall have the right, in good faith consultation with ~~the consent of the Borrower (not to be unreasonably withheld or delayed)~~Borrower, to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be requiredsuccessor. If no successor ~~has~~ shall have been so appointed ~~as provided above~~ by the Majority Lenders and shall have accepted such appointment within ~~ten~~ 30 days after the retiring Administrative Agent gives notice of its ~~resignation or the Administrative Agent receives notice of removal~~resignation, then ~~(a) in the case of a retirement,~~ the retiring Administrative Agent ~~may (but shall not be obligated to)~~may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent meeting the qualifications set forth above (including~~Agent, ~~for the avoidance of doubt~~respectively, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent which shall be ~~discharged from its duties and obligations hereunder and under the other Loan Documents (except that~~ a bank with an office in ~~the case~~ Toronto, Canada or an Affiliate of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8bank. Upon the acceptance of its appointment as Administrative Agent ~~▇▇▇▇▇▇▇▇▇ as~~ hereunder by a successor, such successor ~~Administrative Agent, the successor Administrative Agent~~ shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring~~ Administrative Agent), as the case may be, and the retiring ~~or removed~~ Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section ~~9.13 hereof~~10.12). The fees payable by ~~the~~ Borrower to ~~any~~ a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the~~ Borrower and such ~~successor Administrative Agent~~successor. After the Administrative Agent’s resignation ~~or removal~~ hereunder, the provisions of this Article and Section ~~9.03~~ 10.3 shall continue in effect for the benefit of such retiring ~~or removed~~ Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any ~~action~~ actions taken or omitted to be taken by any of them while ~~the relevant Person~~ it was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender ~~or any of their Related Parties~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Document or any ~~of their respective~~ related agreement or any document furnished hereunder or thereunder.

Appears in 3 contracts

Sources: Credit Agreement (Lone Pine Resources Inc.), Credit Agreement (Lone Pine Resources Inc.), Credit Agreement (Forest Oil Corp)

Agents. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably appoints ~~BofA~~ JPMorgan Chase Bank, N.A. as Global Administrative Agent, Citisecurities Limited (~~or any successor appointed pursuant hereto~~ABN 51 ▇▇▇ ▇▇▇ ▇▇▇) as Australian Administrative ~~Agent~~ Agent, Bank of America, N.A. and Citibank, N.A as Global Syndication Agents, and The Royal Bank of Scotland plc and Royal Bank of Canada as Global Documentation Agents, and authorizes ~~the Administrative~~ each such Agent to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. Any ~~Person~~ bank serving as ~~Administrative~~ an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless~~ such ~~Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 ~~any Loan Party~~ Borrower or any Subsidiary ~~of any Loan Party~~ or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. ~~The Lenders acknowledge that, pursuant to such activities,~~ Where the Australian Administrative Agent ~~or its Affiliates may receive~~ provides services in connection with the administration of the Loans, that is when it calculates rates and amounts, keeps records, keeps the register, receives and distributes payments and information ~~regarding any Loan Party or any of its Affiliates~~ received under Section 5.1 (~~including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate~~Financial Reporting and Notices) and ~~acknowledge that~~ under this Agreement and receives and deals with Borrowing Requests and Interest Election Requests, it does not provide those services as agent for the ~~Administrative Agent shall not be under any obligation to provide such information to them~~Arranger or the Lenders, but as principal, but the remainder of this Article IX still applies. The ~~Administrative Agent~~ Agents shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default ~~or Event of Default exists,~~ has occurred and is continuing (the use of the term “agent” herein and in the other Loan Documents with reference to the ~~Administrative Agent~~ Agents is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable ~~Requirements of Law~~law; ~~it being understood that~~ rather, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties), (b) ~~the Administrative~~ each Agent shall not have any duty to take any discretionary action or exercise any discretionary ~~power~~powers, except discretionary rights and powers ~~that are~~ expressly contemplated ~~by the Loan Documents and which the Administrative~~ hereby that such Agent is required to exercise in writing ~~as directed~~ by the Required ~~Lenders or Required Revolving~~ Lenders (or such other number or percentage of the Lenders as shall be necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.2); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth ~~in the Loan Documents~~herein, ~~the Administrative~~ each Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the~~ Borrower or any of its ~~Restricted~~ Subsidiaries that is communicated to or obtained by the ~~Person~~ bank serving as ~~Administrative~~ such Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Each Agent shall not be liable ~~to the Lenders or any other Secured Party~~ for any action taken or not taken by it with the consent or at the request of the Required Lenders ~~or Required Revolving Lenders~~ (or such other number or percentage of the Lenders as ~~is necessary, or as the Administrative Agent believes in good faith~~ shall be ~~necessary,~~ necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.2) or in the absence of its own gross negligence or willful misconduct~~, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein~~. ~~The Administrative~~ Each Agent shall ~~not~~ be deemed not to have knowledge of any ~~Default or Event of~~ Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~the~~ Borrower or ~~any~~ a Lender, and ~~the Administrative~~ such Agent 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 hereunder or in connection ~~with any Loan Document~~herewith, (iii) the performance or observance of any ~~covenant~~of the covenants, ~~agreement~~ agreements or other ~~term~~ terms or ~~condition~~ conditions set forth ~~in any Loan Document or the occurrence of any Default or Event of 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 creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to such Agent. None of the ~~Administrative Agent~~ Persons identified on the facing page of this Agreement as the “Joint Lead Arrangers and Joint Bookrunners” (the “Arrangers”), the Global Documentation Agents or ~~(vii)~~ the Global Syndication Agents shall have any ~~property~~right, ~~book~~ power, obligation, liability, responsibility or ~~record of any Loan Party~~ duty under this Agreement or any ~~Affiliate thereof~~other Combined Loan Document other than, except in the case of the Arrangers, those applicable to all Lenders as such. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the The Australian Administrative Agent, ~~of, among other things,~~ the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Global Administrative Agent and ~~each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of~~ the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent Agents shall be entitled to rely upon, 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) that~~ believed by it ~~believes~~ to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper Person. The Australian Administrative Agent, the Global Administrative Agent and the other Agents also may rely upon any statement made to it orally or by telephone and believed by it to ~~have been~~ be made by the proper ~~Person~~ Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing BankThe Australian Administrative Agent, the Global Administrative Agent ~~may presume that such condition is satisfactory to such Lender unless~~ and the ~~Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent~~ other 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~~ Any Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itsuch Agent. ~~The Administrative~~ Any Agent and any such sub-agent may perform any and all of ~~their respective~~ its duties and exercise ~~their respective~~ its rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article 8~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the Administrative~~ such Agent and any such sub-~~agent~~ 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 ~~the Administrative~~ an Agent. ~~The Secured Parties agree that~~ Subject to the appointment and acceptance of a successor Global Administrative Agent ~~shall not be responsible to the Secured Parties for the negligence~~ or ~~misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such~~ Australian Administrative Agent ~~acted with gross negligence~~ as provided in this paragraph, the Global Administrative Agent or ~~willful misconduct in~~ the ~~selection of such sub-agent. The~~ Australian Administrative Agent may resign at any time by ~~giving ten days’ written notice to~~ notifying the ~~Lenders, the Issuing Banks~~ Lenders and ~~the~~ Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon ~~receipt of~~ any such ~~notice of resignation or delivery of any such notice of removal~~resignation, ~~the Required Lenders~~ Borrower shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld or delayed)~~Combined Required Lenders, to appoint one of the Lenders as a successor. If no successor shall have been so appointed by Borrower and shall have accepted such appointment within 30 days after the retiring Global Administrative Agent or Australian Administrative Agent gives notice of its resignation, then the retiring Global Administrative Agent or Australian Administrative Agent may, on behalf of the Lenders, appoint a successor Global Administrative Agent or Australian Administrative Agent which shall be a ~~commercial~~ bank with an office in New York, New York, or ~~trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of~~ Sydney, Australia, respectively, or an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be required. If no successor has been appointed as provided above and accepted such appointment within ten days after the retiring Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of a retirement, 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 meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case Affiliate of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8bank. Upon the acceptance of its appointment as Global Administrative Agent ~~▇▇▇▇▇▇▇▇▇ as a successor Administrative Agent, the successor~~ or Australian Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~or removed~~ Global Administrative Agent ~~(other than any rights to indemnity payments owed to the retiring~~ or Australian Administrative Agent), and the retiring Global Administrative Agent or ~~removed~~ Australian Administrative Agent shall be discharged from its duties and obligations ~~hereunder (other than its obligations under Section 9.13 hereof)~~hereunder. The fees payable by ~~the~~ Borrower to ~~any~~ a successor Global Administrative Agent or Australian Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the~~ Borrower and such ~~successor Administrative Agent~~successor. After the Global Administrative Agent’s or Australian Administrative Agent’s resignation ~~or removal~~ hereunder, the provisions of this Article and Section ~~9.03~~ 10.3 shall continue in effect for the benefit of such retiring Global Administrative Agent or ~~removed~~ Australian Administrative Agent, its sub-agents and their respective Related Parties in respect of any ~~action~~ actions taken or omitted to be taken by any of them while ~~the relevant Person~~ it was acting as Global Administrative Agent ~~(including for this purpose holding any collateral security following the retirement~~ or ~~removal of the~~ Australian Administrative Agent~~). Notwithstanding anything to the contrary herein~~, ~~no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent~~respectively. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender ~~or any of their Related Parties~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any ~~of their respective~~ document furnished hereunder or thereunder.

Appears in 2 contracts

Sources: Syndicated Facility Agreement, Syndicated Facility Agreement (Apache Corp)

Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints BofA (or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, 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. Any Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 any Loan Party or any Subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ The rights, powers, duties and obligations and actions of each Agent ~~shall~~ under this Indenture are several and not ~~be subject to any fiduciary~~ joint or ~~other implied duties, regardless of whether a Default or Event of Default exists,~~ joint and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, several. (b) The Issuer and the ~~Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights~~ Agents acknowledge and ~~powers~~ agree that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as is necessary, or as the Administrative Agent believes in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment event of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent 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 hereunder or in connection with any Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any Default or Event of Default, ~~(iv)~~ the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. Each Secured Party acknowledges and agrees that the Administrative Agent Trustee may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent but shall not be ~~liable~~ obliged to, by notice in writing to the ~~Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to~~ Issuer and the ~~contrary contained herein or in any of~~ Agents, require that the ~~other Loan Documents~~Agents act as agents of, and take instructions exclusively from, the ~~Borrower,~~ Trustee. (c) In the ~~Administrative Agent and each Secured Party agree~~ event that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant instructions given to any ~~Loan Document may be exercised solely by the Administrative~~ Agent ~~on behalf of the Secured Parties in accordance with the terms hereof or thereof~~are not reasonably clear, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 then such sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent shall be entitled to ~~rely upon~~seek clarification from the Issuer or other party entitled to give the Agents instructions under this Indenture by written request within 5 Business Days of receipt by such Agent of such instructions. If an Agent has sought clarification in accordance with this Section 2.15(c), then such Agent shall be entitled to take no action until such clarification is provided, and shall not incur any liability for ~~relying upon~~not taking any action pending receipt of such clarification. (d) The Issuer shall provide the Agents with a certified list of authorized signatories within a reasonable time following a request for such list by an Agent. (e) The Agents shall hold all funds as bankers subject to the terms of this Indenture and as a result, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) that it believes to such money need not be ~~genuine and to have been signed, sent or otherwise authenticated~~ held in accordance with the rules established by the ~~proper Person~~UK Financial Conduct Authority (or any similar authority in any other relevant country) in relation to client money. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and Agents shall not be liable to account for ~~any action taken or not taken~~ interest on money paid to them by ~~it in accordance with~~ the ~~advice of any such counsel, accountants or experts.~~ Issuer. (f) The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article 8 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 the Administrative Agent. The Secured Parties agree that the Administrative Agent Agents shall not be ~~responsible~~ bound to make payment until satisfied that full payment has been received by such Agent from the ~~Secured Parties for the negligence or misconduct~~ Issuer in cleared funds. (g) The Agents shall be entitled to make payments net of any ~~sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence~~ taxes or ~~willful misconduct in the selection of such sub-agent. The Administrative Agent may resign at~~ other sums required by any time by giving ten days’ written notice to the Lenders, the Issuing Banks and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not applicable law to be ~~unreasonably~~ withheld or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(adeducted. (h) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be required. If no successor has been appointed as provided above and accepted such appointment within ten days after the retiring Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of a retirement, 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 meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative No Agent shall be ~~discharged from its duties and obligations hereunder and~~ under ~~the~~ any fiduciary duty or other ~~Loan Documents (except that in the case~~ obligation towards, or have any relationship of agency or trust, for or with any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8. Upon the acceptance of its appointment as Administrative Agent ▇▇▇▇▇▇▇▇▇ as a successor Administrative Agent, the successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (person other than ~~any rights to indemnity payments owed to~~ the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the Borrower to any successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 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 action taken or omitted to be taken by any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their respective Issuer.

Appears in 2 contracts

Sources: Indenture (Allwyn Entertainment AG), Indenture (Allwyn Entertainment AG)

Agents. ~~Each~~ The Depositary may perform its obligations under the Deposit Agreement through any agent or attorney appointed by it, provided that the Depositary shall notify the Company of such appointment. With respect to any and all losses, damages, costs, judgments, expenses and other liabilities (including reasonable attorneys' fees and expenses) (collectively referred to as “Losses”) incurred by any Holder or Beneficial Owner as a result of the ~~Lenders~~ acts or failure to act by such agent or attorney (or, in the case of the Custodian, only such damages as are described below), the Depositary, to the extent it shall receive indemnification and security acceptable to it from such Holder or Beneficial Owner, may take appropriate action to recover such Losses from such agent or attorney and, to the extent is takes such action and recovers any amounts, as promptly as practicable shall distribute any amounts so recovered (exclusive of costs and expenses incurred by the Depositary in connection with recovering such Losses which are not reimbursed by such agent or attorney, including, without limitation, the Custodian) to the Holders and Beneficial Owners entitled thereto; and the ~~Issuing Banks hereby irrevocably appoints BofA~~ Depositary's sole responsibility and liability to such Holders and Beneficial Owners shall be limited to amounts so received from such agent or attorney (exclusive of costs and expenses incurred by the Depositary in connection with recovering such Losses which are not reimbursed by such agent or ~~any successor appointed pursuant hereto) as Administrative Agent and authorizes~~ attorney, including, without limitation, the ~~Administrative Agent to take such actions on its behalf, including execution~~ Custodian). The liability of the ~~other Loan Documents,~~ Custodian is set forth in the Custody Agreement between the Depositary and ~~to exercise such powers as are delegated to~~ the ~~Administrative Agent by~~ Custodian (the “Custody Agreement”). Under the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 any Loan Party or any Subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders acknowledge that, pursuant to such activitiesCustodian Operating Agreement, the ~~Administrative Agent or~~ Custodian is only liable for its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality breach of the ~~foregoing~~Custody Agreement, ~~(a) the Administrative Agent shall not be subject to any fiduciary~~ its gross negligence, willful default or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as is necessary, or as the Administrative Agent believes in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent 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 hereunder or in connection with any Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights fraud in connection with the ~~management~~ performance of its obligations thereunder and for loss of Shares or ~~release of any Collateral or~~ funds held in custody under the Custody Agreement. In each case, the liability of the ~~obligations~~ Custodian with respect to the loss of ~~any Loan Party under this Agreement~~Shares or funds will be limited to direct (but not indirect, including consequential) losses incurred by Holders and Beneficial Owners. ~~Each Secured Party agrees that~~ Moreover, only the ~~Administrative Agent may~~ Depositary, acting on behalf of Holders and Beneficial Owners, will be permitted to bring claims against the Custodian in ~~its sole discretion, but is under no obligation to, credit bid any part~~ respect of such losses incurred by Holders and Beneficial Owners as a result of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent shall be entitled to rely upon, 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) that it believes to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loanacts of, or the ~~issuance of a Letter of Credit, that by its terms must be fulfilled~~ failure to ~~the satisfaction of a Lender or the applicable Issuing Bank~~act by, the ~~Administrative Agent may presume that~~ Custodian. Any such ~~condition is satisfactory~~ claims by the Depositary against the Custodian will be resolved exclusively by arbitration. The Depositary agrees to ~~such Lender unless the Administrative Agent has received notice~~ promptly remit to ~~the contrary~~ Holders any amounts recovered from such ~~Lender or Issuing Bank prior to~~ claims (exclusive of costs and expenses incurred by the making of such Loan or the issuance of such Letter of Credit. 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 and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article 8 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 Depositary in connection with recovering such losses which are not reimbursed by the ~~syndication of the credit facilities provided for herein as well as activities as the Administrative Agent~~Custodian). The Secured Parties agree that the Administrative Agent shall not be responsible to the Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative Agent may resign at any time by giving ten days’ written notice to the Lenders, the Issuing Banks and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the Required Lenders Depositary shall have ~~the right, with the consent of the Borrower (not~~ no other responsibility or liability to ~~be unreasonably withheld~~ Holders or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, Beneficial Owners with respect to ~~any Borrower~~the acts of, ~~Section 7.01(f)~~ or ~~(g)~~the failure to act by, ~~no consent~~ the Custodian or for the unavailability of the ~~Borrower shall be required. If no successor has been appointed as provided above and accepted such appointment within ten days after the retiring Administrative Agent gives notice of its resignation~~ Shares or the ~~Administrative Agent receives notice~~ failure to make any distribution of ~~removal, then (a) in~~ cash or property with respect thereto as a result of such unavailability. The liability of the ~~case of a retirement~~Custodian for such losses incurred by Holders and Beneficial Owners, the ~~retiring Administrative Agent may (but shall not be obligated to), on behalf~~ obligation of the ~~Lenders~~ Depositary to bring claims against the Custodian for such losses and the ~~Issuing Banks, appoint a successor Administrative Agent meeting~~ method by which such claims may be brought are subject to the ~~qualifications set forth above (including, for the avoidance of doubt, the consent~~ terms and conditions of the ~~Borrower) or (b) in~~ Custody Agreement, a copy of which is available from the ~~case of a removal,~~ Depositary upon the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case written request of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8. Upon the acceptance of its appointment as Administrative Agent ▇▇▇▇▇▇▇▇▇ as a successor Administrative Agent, the successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the Borrower to any successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 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 action taken or omitted to be taken by any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their respective Holder.

Appears in 2 contracts

Sources: Deposit Agreement (Deutsche Bank Trust Co Americas/ ADR Group), Deposit Agreement (Mechel OAO)

Agents. Each of the Lenders ~~and the Issuing Banks hereby~~ irrevocably ~~appoints BofA (or any successor appointed pursuant hereto) as Administrative Agent and~~ authorizes ~~the Administrative~~ each Agent to take such ~~actions~~ action on its ~~behalf, including execution~~ behalf and to exercise such powers hereunder as are specifically delegated to such Agent by the terms hereof and of the other Loan Documents, ~~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. Any Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 any Loan Party or any Subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the 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 exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as is necessary, or as the Administrative Agent believes in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent 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 hereunder or in connection with any Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent shall be entitled to rely upon, 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) that it believes to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. 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 and all of its duties and exercise its rights and powers by or through any one or more sub-agents selected and appointed by itsuch Agent. ~~The Administrative~~ Each Agent and any such sub-agent may perform any and all ~~of their respective~~ its duties and exercise ~~their respective~~ its rights and powers through ~~their respective Related Parties~~Affiliates or its or its Affiliates' employees. The exculpatory provisions of ~~this Article 8~~ the following paragraphs shall apply to any such sub-agent, to the Affiliates of each Agent and any such sub-agent and to the ~~Related Parties~~ directors, officers and employees of ~~the Administrative Agent and~~ each Agent, any such sub-agent and ~~shall apply to~~ their respective ~~activities~~ Affiliates. The Administrative Agent is hereby expressly authorized and directed by the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement. Neither Agent, and none of their respective directors, officers, employees or agents, shall be liable as such for any action taken or omitted to be taken by it or them hereunder or in connection herewith (a) at the ~~syndication~~ request or with the approval of the ~~credit facilities provided~~ Required Lenders (or, if otherwise specifically required hereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence or wilful misconduct. Each Lender acknowledges that it has decided to enter into this Agreement and to extend the Loans hereunder based on its own analysis of the creditworthiness of the Borrowers and agrees that neither Agent shall bear any responsibility for such creditworthiness. Neither Agent shall be responsible in any manner to any of the Lenders for the effectiveness, enforceability, genuineness, validity or due execution of any Loan Document or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be under any obligation to ascertain or inquire as ~~well~~ to the performance or observance of any of the terms, provisions, covenants, conditions, agreements or obligations of this Agreement or any other agreements on the part of any Borrower or other Loan Party and, without limiting the generality of the foregoing, each Agent shall, in the absence of knowledge to the contrary, be entitled to accept any certificate furnished pursuant to any Loan Document as ~~activities~~ conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype or telecopy message, statement, order or other document which it reasonably believes to be genuine and correct and to have been signed or sent by the proper person or persons. It is understood and agreed that each Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party and engage in other transactions with Millennium, any Subsidiary or any Affiliate of the foregoing as though it were not the ~~Administrative Agent~~agent of the Lenders hereunder. Each Agent may consult with legal counsel selected by it in connection with matters arising under this Agreement and any action taken or suffered in good faith by it in accordance with the opinion of such counsel shall be full justification and protection to it. Each Agent may exercise any of its powers and rights and perform any duty under this Agreement through agents, bailees or attorneys. The ~~Secured Parties agree that~~ Lenders shall, ratably in accordance with the ~~Administrative Agent shall not be responsible to~~ amounts of their outstanding Term Loans, Revolving Exposures and unused Commitments at the ~~Secured Parties~~ time of demand for indemnification hereunder by either Agent, indemnify such Agent, in its capacity as agent on behalf of the ~~negligence or misconduct of any sub-agent except~~ Lenders (to the extent ~~that a court~~ not reimbursed by the Borrowers pursuant to the terms hereof and without limiting the obligations of ~~competent jurisdiction determines in a final~~ the Borrowers to do so) against any cost, expense (including reasonable counsel fees and ~~nonappealable judgment that~~ disbursements), claim, demand, action, loss or liability (except such ~~Administrative Agent acted with~~ as results from such Agent's gross negligence or ~~willful misconduct~~ wilful misconduct) that such Agent may suffer or incur in connection with this Agreement or any action taken or omitted by such Agent hereunder. For purposes of this paragraph, each reference to an Agent shall be deemed to include the ~~selection~~ Swingline Lender and each Issuing Bank. Subject to the appointment and acceptance of ~~such sub-agent. The Administrative~~ a successor Agent as provided below, either Agent may resign at any time by ~~giving ten days’ written notice to~~ notifying the ~~Lenders, the Issuing Banks~~ Lenders and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day periodMillennium. Upon ~~receipt of~~ any such ~~notice of resignation or delivery of any such notice of removal~~resignation, the Required Lenders shall have the ~~right, with the consent of the Borrower (not to be unreasonably withheld or delayed),~~ right to appoint a successor ~~Administrative~~ Agent. If no successor Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a ~~commercial~~ bank having an office (or ~~trust company~~ an Affiliate with ~~offices~~ an office) in ~~the U.S. having~~ New York, New York, with a combined capital and surplus ~~in excess~~ of at least $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be required. If no successor has been appointed as provided above and accepted such appointment within ten days after the retiring Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of a retirement, 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 meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8500,000,000. Upon the acceptance of ~~its~~ any appointment as ~~Administrative~~ Agent ~~▇▇▇▇▇▇▇▇▇ as~~ hereunder by a successor, such successor ~~Administrative Agent, the successor Administrative Agent~~ shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~or removed Administrative~~ Agent ~~(other than any rights to indemnity payments owed to the retiring Administrative Agent),~~ and the retiring ~~or removed Administrative~~ Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the Borrower to any successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative Agenthereunder. After ~~the Administrative~~ any Agent’s 's resignation ~~or removal~~ hereunder, the provisions of this Article ~~and Section 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 ~~action~~ actions taken or omitted to be taken by ~~any of them~~ it while ~~the relevant Person~~ it was acting as ~~Administrative~~ Agent. The Lenders hereby acknowledge that no Agent ~~(including for this purpose holding~~ shall be under any ~~collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything~~ duty to take any discretionary action permitted to be taken by it pursuant to the ~~contrary herein~~provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders or, ~~no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender and each Issuing Bank acknowledges that it has~~where required, ~~independently and without reliance upon~~ all the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their respective Lenders.

Appears in 2 contracts

Sources: Credit Agreement (Millennium America Inc), Credit Agreement (Millennium Chemicals Inc)

Agents. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably appoints ~~BofA (or any successor appointed pursuant hereto) as~~ the Administrative Agent, the Collateral Agent and the Floorplan Funding Agent (collectively, the “Agents”) and authorizes ~~the Administrative Agent~~ each Agent, in its respective capacity, to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~Any Person~~ Without limiting the generality of the foregoing, the Administrative Agent is hereby expressly authorized to execute any and all documents (including releases and intercreditor agreements) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents. The banks serving as ~~Administrative Agent~~ Agents hereunder ~~shall have~~ has the same rights and powers in ~~its~~ their capacity as a Lender as any other Lender and may exercise the same as though it they were not ~~the Administrative~~ an Agent, and ~~the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless~~ such ~~Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. Such Person~~ banks and ~~its~~ their 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 ~~any Loan Party~~ the Borrowers or any Subsidiary ~~of any Loan Party~~ or other Affiliate thereof as if it they were not ~~the Administrative~~ an Agent hereunder. ~~The Lenders acknowledge that, pursuant to such activities, the Administrative~~ No Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent shall not have has any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, has occurred and is ~~intended to create or reflect only an administrative relationship between independent contracting parties~~continuing, (b) ~~the Administrative~~ no Agent ~~shall not have~~ has any duty to take any discretionary action or exercise any discretionary ~~power~~powers, except discretionary rights and powers ~~that are~~ expressly contemplated ~~by the Loan Documents and which the Administrative~~ hereby that such Agent is ~~required~~ instructed in writing to exercise ~~in writing as directed~~ by the Required ~~Lenders or Required Revolving~~ Lenders (or such other number or percentage of the Lenders as shall be necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~9.08)~~; provided that the Administrative~~ , (c) each Agent shall ~~not~~ be ~~required~~ fully justified in failing or refusing to take any action ~~that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to~~ under any Loan Document unless it shall first receive such advice or ~~applicable Requirements~~ concurrence of ~~Law~~the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action and (cd) except as expressly set forth in the Loan Documents, ~~the Administrative~~ no Agent ~~shall not have~~ has any duty to disclose, ~~and~~ nor shall ~~not~~ it be liable for the failure to disclose, any information relating to Holdings, the ~~Borrower~~ Borrowers or any of ~~its Restricted Subsidiaries~~ the subsidiaries thereof that is communicated to or obtained by the ~~Person~~ bank serving as ~~Administrative~~ such Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable ~~to the Lenders or any other Secured Party~~ for any action taken or not taken by it with the consent or at the request of the Required Lenders ~~or Required Revolving Lenders~~ (or such other number or percentage of the Lenders as ~~is necessary, or as the Administrative Agent believes in good faith~~ shall be ~~necessary,~~ necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~9.08) or in the absence of its own gross ~~negligence~~ negligence, bad faith or willful ~~misconduct,~~ misconduct or material breach of the Loan Documents (as determined by ~~the final judgment of~~ a court of competent ~~jurisdiction,~~ jurisdiction in ~~connection with its duties expressly set forth herein~~a final and non-appealable judgment). ~~The Administrative~~ No Agent shall ~~not~~ be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by the ~~Borrower~~ Borrowers or ~~any~~ a Lender, and ~~the Administrative~~ no Agent 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 ~~hereunder~~ thereunder or in connection ~~with any Loan Document~~therewith, (iii) the performance or observance of any ~~covenant~~of the covenants, ~~agreement~~ agreements or other ~~term~~ terms or ~~condition~~ conditions set forth in any Loan ~~Document or the occurrence of any Default or Event of Default~~Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the ~~creation,~~ perfection or priority of any Lien ~~on the Collateral~~ or ~~the existence, value~~ security interest created or ~~sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue~~ purported to be ~~properly~~ created under the Security Documents or ~~sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority,~~ (vi) the satisfaction of any condition set forth in Article 4 IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the ~~Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof~~applicable Agent. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent shall be entitled to rely upon, 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) that~~ believed by it ~~believes~~ to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper Person. ~~The Administrative~~ Each Agent may also ~~may~~ rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper ~~Person~~ Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Each Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Borrowers or any Affiliate thereof), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in good faith and in accordance with the advice of any such counsel, accountants or experts. ~~The~~ For purposes of determining compliance with the conditions specified in Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent has received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Each Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. ~~The Administrative~~ Each Agent and any such sub-agent may perform any and all ~~of their respective~~ its duties and exercise ~~their respective~~ its rights and powers by or through their respective Related Parties. The exculpatory provisions of ~~this Article 8~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the Administrative~~ each Agent and any such sub-~~agent~~ 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 ~~the Administrative~~ an Agent. ~~The Secured Parties agree that the Administrative Agent shall not be responsible~~ Subject to the ~~Secured Parties for the negligence or misconduct~~ appointment and acceptance of ~~any sub-agent except to the extent that~~ a ~~court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative~~ successor Agent ~~acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative~~ as provided below, each Agent may resign at any time by ~~giving ten days’ written notice to~~ notifying in writing the Lenders, each Issuing Bank (if applicable), the ~~Issuing Banks~~ Floorplan Funding Agent and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day periodBorrowers. Upon receipt of any such notice of resignation ~~or delivery~~ of ~~any~~ such ~~notice of removal~~Agent, the Required Lenders ~~shall have~~ has the right, with the consent of the ~~Borrower~~ Borrowers (such consent not to be unreasonably ~~withheld~~ withheld; provided that no such consent of the Borrowers shall be required if an Event of Default has occurred and is continuing under paragraphs (g)(i) or ~~delayed~~(h) of Article VII), to appoint a successor ~~Administrative Agent~~ (other than a Disqualified Institution) which shall be a commercial ~~bank~~ banking institution organized under the laws of the United States or ~~trust company with offices~~ any State or a United States branch or agency of a commercial banking institution, in ~~the U.S.~~ each case having a combined capital and surplus ~~in excess~~ of at least $~~1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be required~~500,000,000. If no successor ~~has been~~ Agent is appointed ~~as provided above and accepted~~ prior to the effective date of resignation of the relevant Agent specified by such ~~appointment within ten days after the retiring Administrative~~ Agent ~~gives notice of~~ in its ~~resignation or the Administrative Agent receives notice of removal, then (a) in the case of a retirement~~notice, the ~~retiring Administrative~~ resigning Agent may (but shall not be obligated to), on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower mayappoint, after consulting with the Lenders with the consent of and the Borrowers, a successor agent from among the Lenders. If no successor agent has accepted appointment as the successor agent by the date which is 60 days following such Agent’s notice of resignation, the retiring Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of such Agent hereunder until such time, if any, as the Required ~~▇▇▇▇▇▇▇~~Lenders, appoint a successor ~~Administrative Agent meeting the qualifications set forth above;~~ agent as provided ~~that~~ for above (x) except in the case of ~~a retirement, if~~ the Administrative Agent ~~notifies the Borrower~~holding collateral security on behalf of any Secured Parties, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring resigning Administrative Agent shall continue to hold such collateral security as nominee until such time as a successor Administrative Agent is appointed~~) and~~ ). Upon the acceptance of any appointment as an Agent hereunder by a successor (~~ii) all payments~~and, ~~communications and determinations required to be made by, to or through~~ in the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint case of a successor Administrative Agent, upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Security Documents, and such other instruments or notices, as ~~provided above~~ may be necessary or desirable, or as the Required Lenders may request, in ~~this Article 8. Upon~~ order to (a) continue the ~~acceptance~~ perfection of ~~its appointment as Administrative Agent ▇▇▇▇▇▇▇▇▇ as a successor Administrative Agent~~the Liens granted or purported to be granted by the Security Documents or otherwise ensure that the obligations under Section 5.09 are satisfied), the successor ~~Administrative~~ Agent shall thereupon succeed to and become vested with all the rights, powers, ~~privileges~~ discretion, privileges, and duties of the retiring ~~or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative~~ Agent), and the retiring ~~or removed Administrative~~ Agent shall be discharged from its duties and obligations ~~hereunder (other than its obligations~~ under ~~Section 9.13 hereof)~~the Loan Documents. The fees payable by the ~~Borrower~~ Borrowers to ~~any~~ a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such ~~successor Administrative Agent~~successor. After ~~the Administrative~~ an Agent’s resignation ~~or removal~~ hereunder, the provisions of this Article and Section ~~9.03~~ 9.05 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 ~~action~~ actions taken or omitted to be taken by any of them while ~~the relevant Person was~~ acting as ~~Administrative Agent (including for~~ Agent. None of Lenders or other Persons identified on the cover page or signature pages of this ~~purpose holding~~ Agreement as a “bookrunner,” or “arranger” has any ~~collateral security following~~ right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the ~~retirement or removal~~ foregoing, none of the ~~Administrative Agent). Notwithstanding anything~~ Lenders or other Persons so identified has or be deemed to ~~the contrary herein, no Disqualified Institution (nor~~ have any ~~Affiliate thereof) may be appointed as a successor Administrative Agent~~fiduciary relationship with any Lender. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon an Agent, the ~~Administrative Agent~~ Arranger or any other Lender ~~or any of their Related Parties~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon any Agent, the ~~Administrative Agent~~ Arranger or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. To the extent required by any applicable law, the Administrative Agent may withhold from any interest payment to any Lender an amount equivalent to any applicable withholding tax. If the IRS or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding tax ineffective or for any other reason, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent and the Collateral Agent (irrespective of whether the Obligations shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether such Agent has made any demand on the Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise; (a) to file and prove a claim for the whole amount of the Obligations and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and each Agent or (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and each Agent and their respective agents and counsel and all other amounts due such Lenders and the Administrative Agent under Section 2.05 and 9.05) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

Appears in 2 contracts

Sources: Revolving Loan Credit Agreement (ConvergeOne Holdings, Inc.), Revolving Loan Credit Agreement (Forum Merger Corp)

Agents. Each of the ~~Lenders~~ Lenders, the Issuing Bank and the ~~Issuing Banks~~ other Agents hereby irrevocably ~~appoints BofA~~ appoint JPMorgan Chase Bank, N.A. (~~or any successor appointed pursuant hereto~~formerly known as JPMorgan Chase Bank) as Administrative ~~Agent~~ Agent, each of The Royal Bank of Scotland plc, Wachovia Bank, N.A. and ~~authorizes the Administrative~~ Bank of America, N.A. as Syndication Agents, and Dresdner Bank AG, New York and Grand Cayman Branches as Documentation Agent, and authorize each such Agent to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to ~~the Administrative Agent~~ such Agents by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the foregoing, the Administrative Agent is hereby authorized to execute and deliver the Intercreditor Agreement on behalf of each Lender and bind each Lender to the terms thereof as if each Lender were directly a party thereto. Further, each Lender hereby irrevocably appoints JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank) as Collateral Agent for the Lenders under the Intercreditor Agreement and the Security Instruments (as applicable). Any ~~Person~~ bank serving as ~~Administrative~~ an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and ~~the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless~~ such ~~Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 ~~any Loan Party~~ the Borrower or any Subsidiary ~~of any Loan Party~~ or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, has occurred and is ~~intended to create or reflect only an administrative relationship between independent contracting parties~~continuing, (b) ~~the Administrative~~ each Agent shall not have any duty to take any discretionary action or exercise any discretionary ~~power~~powers, except discretionary rights and powers ~~that are~~ expressly contemplated by the Loan Documents ~~and which the Administrative~~ that such Agent is required to exercise in writing ~~as directed~~ by the Required ~~Lenders or Required Revolving~~ Lenders (or such other number or percentage of the Lenders as shall be necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.02, or further, with respect to the Collateral Agent, such other number or percentage of Persons as necessary or required by the terms of the Intercreditor Agreement); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its ~~Restricted~~ Subsidiaries that is communicated to or obtained by the ~~Person~~ bank serving as ~~Administrative~~ such Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Each Agent shall not be liable ~~to the Lenders or any other Secured Party~~ for any action taken or not taken by it with the consent or at the request of the Required Lenders ~~or Required Revolving Lenders~~ (or such other number or percentage of the Lenders as ~~is necessary, or as the Administrative Agent believes in good faith~~ shall be ~~necessary,~~ necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.02) or in the absence of its own gross negligence or willful misconduct; PROVIDED, ~~as determined by the final judgment of a court of competent jurisdiction~~HOWEVER, ~~in connection with its duties expressly set forth herein~~THAT IT IS THE INTENTION OF THE PARTIES HERETO THAT EACH OF THE AGENTS BE INDEMNIFIED IN THE CASE OF ITS OWN NEGLIGENCE (OTHER THAN GROSS NEGLIGENCE), REGARDLESS OF WHETHER SUCH NEGLIGENCE IS SOLE OR CONTRIBUTORY, ACTIVE OR PASSIVE, IMPUTED, JOINT OR TECHNICAL. ~~The Administrative~~ Each Agent shall ~~not~~ be deemed not to have knowledge of any Default (other than, with respect to the Administrative Agent, knowledge of a Default of the types specified in clauses (a) or ~~Event~~ (b) of ~~Default~~ Article VIII) unless and until written notice thereof is given to ~~the Administrative~~ such Agent by the Borrower or ~~any~~ a Lender, and ~~the Administrative~~ such Agent 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 hereunder or in connection ~~with any Loan Document~~herewith, (iii) the performance or observance of any ~~covenant~~of the covenants, ~~agreement~~ agreements or other ~~term~~ terms or ~~condition~~ conditions set forth in any Loan ~~Document or the occurrence of any Default or Event of Default~~Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative such Agent~~, of, among other things, the upcoming lapse or expiration thereof~~. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent Agents shall be entitled to rely upon, 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) that~~ believed by it ~~believes~~ to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper Person. The ~~Administrative Agent~~ Agents also may rely upon any statement made to it orally or by telephone and believed by it to ~~have been~~ be made by the proper ~~Person~~ Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. 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~~ Any Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itsuch Agent. ~~The Administrative~~ Any Agent and any such sub-agent may perform any and all ~~of their respective~~ its duties and exercise ~~their respective~~ its rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article 8~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the Administrative~~ such Agent and any such sub-~~agent~~ 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 ~~the Administrative~~ an Agent. ~~The Secured Parties agree that~~ Subject to the appointment and acceptance of a successor Administrative Agent ~~shall not be responsible to~~ as provided in this paragraph, the Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative Agent may resign at any time by ~~giving ten days’ written notice to~~ notifying the Lenders, the Issuing ~~Banks~~ Bank and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon ~~receipt of~~ any such ~~notice of resignation or delivery of any such notice of removal~~resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld or delayed)~~Borrower, to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be requiredsuccessor. If no successor ~~has~~ shall have been so appointed ~~as provided above~~ by the Required Lenders and shall have accepted such appointment within ~~ten~~ 30 days after the retiring Administrative Agent gives notice of its ~~resignation or the Administrative Agent receives notice of removal~~resignation, then ~~(a) in the case of a retirement,~~ the retiring 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 meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent which shall be ~~discharged from its duties and obligations hereunder and under the other Loan Documents (except that~~ a bank with an office in ~~the case~~ Dallas, Texas, Houston, Texas or New York City, or an Affiliate of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8bank. Upon the acceptance of its appointment as Administrative Agent ~~▇▇▇▇▇▇▇▇▇ as~~ hereunder by a successor, such successor ~~Administrative Agent, the successor Administrative Agent~~ shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring~~ Administrative Agent), and the retiring ~~or removed~~ Administrative Agent shall be discharged from its duties and obligations ~~hereunder (other than its obligations under Section 9.13 hereof)~~hereunder. The fees payable by the Borrower to ~~any~~ a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such ~~successor Administrative Agent~~successor. After the Administrative Agent’s 's resignation ~~or removal~~ hereunder, the provisions of this Article and Section ~~9.03~~ 10.03 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 ~~action~~ actions taken or omitted to be taken by any of them while ~~the relevant Person~~ it was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender ~~or any of their Related Parties~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any ~~of their respective~~ document furnished hereunder or thereunder.

Appears in 2 contracts

Sources: Credit Agreement (Trinity Industries Inc), Credit Agreement (Trinity Industries Inc)

Agents. Each ~~of the Lenders~~ Lender and ~~the~~ each Issuing ~~Banks~~ Bank hereby irrevocably appoints ~~BofA (or any successor appointed pursuant hereto) as~~ the Administrative Agent and ~~authorizes~~ the Collateral Agent (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the “Agents”) its agent and authorizes the Agents to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~Any Person~~ Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to (i) execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and (ii) negotiate, enforce or the settle any claim, action or proceeding affecting the Lenders in their capacity as such, at the direction of the Required Lenders, which negotiation, enforcement or settlement will be binding upon each Lender. The institution serving as the Administrative Agent and/or the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless~~ such ~~Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 ~~any Loan Party~~ the Borrower or any Subsidiary ~~of any Loan Party~~ or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Neither Agent shall ~~not be under any obligation to provide such information to them. The Administrative Agent shall not~~ have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ neither Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, has occurred and is ~~intended to create or reflect only an administrative relationship between independent contracting parties~~continuing, (b) ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary ~~power~~powers, except discretionary rights and powers ~~that are~~ expressly contemplated ~~by the Loan Documents and which the Administrative~~ hereby that such Agent is ~~required~~ instructed in writing to exercise ~~in writing as directed~~ by the Required ~~Lenders or Required Revolving~~ Lenders (or such other number or percentage of the Lenders as shall be necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~9.08); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, ~~the Administrative~~ neither Agent shall ~~not~~ have any duty to disclose, ~~and~~ nor shall ~~not~~ it be liable for the failure to disclose, any information relating to the Borrower or any of ~~its Restricted~~ the Subsidiaries that is communicated to or obtained by the ~~Person~~ bank serving as Administrative Agent and/or Collateral Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Neither Agent shall ~~not~~ be liable ~~to the Lenders or any other Secured Party~~ for any action taken or not taken by it with the consent or at the request of the Required Lenders ~~or Required Revolving Lenders~~ (or such other number or percentage of the Lenders as ~~is necessary, or as the Administrative Agent believes in good faith~~ shall be ~~necessary,~~ necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~9.08) or in the absence of its own gross negligence or willful misconduct~~, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein~~. ~~The Administrative~~ Neither Agent shall ~~not~~ be deemed to have knowledge of any ~~Default or Event of~~ Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by the Borrower or ~~any~~ a Lender, and ~~the Administrative~~ neither Agent 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 ~~hereunder~~ thereunder or in connection ~~with any Loan Document~~therewith, (iii) the performance or observance of any ~~covenant~~of the covenants, ~~agreement~~ agreements or other ~~term~~ terms or ~~condition~~ conditions set forth in any Loan ~~Document or the occurrence of any Default or Event of Default~~Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof~~such Agent. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent shall be entitled to rely upon, 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) that~~ believed by it ~~believes~~ to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper Person. ~~The Administrative~~ Each Agent may also ~~may~~ rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper ~~Person~~ Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Each 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~~ Each Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. ~~The Administrative~~ Each Agent and any such sub-agent may perform any and all ~~of their respective~~ its duties and exercise ~~their respective~~ its rights and powers by or through their respective Related Parties. The exculpatory provisions of ~~this Article 8~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the Administrative~~ each Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the ~~credit facilities provided for herein~~ Credit Facilities as well as activities as ~~the Administrative~~ Agent. ~~The Secured Parties agree that the Administrative Agent shall not be responsible~~ Subject to the ~~Secured Parties for the negligence or misconduct~~ appointment and acceptance of ~~any sub-agent except to the extent that~~ a ~~court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative~~ successor Agent ~~acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative~~ as provided below, either Agent may resign at any time by ~~giving ten days’ written notice to~~ notifying the Lenders, the Issuing Banks and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon ~~receipt of~~ any such ~~notice of resignation or delivery of any such notice of removal~~resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld or delayed)~~Borrower, to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be requiredsuccessor. If no successor ~~has~~ shall have been so appointed ~~as provided above~~ by the Required Lenders and shall have accepted such appointment within ~~ten~~ 30 days after the retiring ~~Administrative~~ Agent gives notice of its ~~resignation or the Administrative Agent receives notice of removal~~resignation, then ~~(a) in the case of a retirement,~~ the retiring ~~Administrative~~ Agent ~~may (but shall not be obligated to)~~may, on behalf of the Lenders and the Issuing Banks, appoint a successor ~~Administrative~~ Agent ~~meeting~~ which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. If no successor Agent has been appointed pursuant to the ~~qualifications set forth above (including~~immediately preceding sentence by the 30th day after the date such notice of resignation was given by such Agent, ~~for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with~~ such Agent’s resignation shall become effective and the Required ~~▇▇▇▇▇▇▇~~Lenders shall thereafter perform all the duties of such Agent hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent ~~meeting~~ and/or Collateral Agent, as the ~~qualifications set forth above; provided that~~ case may be. Any such resignation by such Agent hereunder shall also constitute, to the extent applicable, its resignation as an Issuing Bank, in which case such resigning Agent (x) ~~in the case~~ shall not be required to issue any further Letters of ~~a retirement, if the Administrative Agent notifies the Borrower, the Lenders~~ Credit hereunder and ~~the Issuing Banks that no qualifying Person has accepted such appointment or~~ (y) ~~in the case~~ shall maintain all of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance its rights as Issuing Bank with ~~the provisos~~ respect to any Letters of Credit issued by it prior to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case date of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8resignation. Upon the acceptance of its appointment as ~~Administrative~~ Agent ~~▇▇▇▇▇▇▇▇▇ as~~ hereunder by a successor, such successor ~~Administrative Agent, the successor Administrative Agent~~ shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative~~ Agent), and the retiring ~~or removed Administrative~~ Agent shall be discharged from its duties and obligations ~~hereunder (other than its obligations under Section 9.13 hereof)~~hereunder. The fees payable by the Borrower to ~~any~~ a successor ~~Administrative~~ Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such ~~successor Administrative Agent~~successor. After ~~the Administrative~~ an Agent’s resignation ~~or removal~~ hereunder, the provisions of this Article and Section ~~9.03~~ 9.05 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 ~~action~~ actions taken or omitted to be taken by any of them while ~~the relevant Person was~~ acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender ~~or any of their Related Parties~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding any other provision of this Agreement or any provision of any other Loan Document, each of the Joint Lead Arrangers, the Syndication Agent and the Co-Documentation Agents are named as such for recognition purposes only, and in their respective capacities as such shall have no duties, responsibilities or liabilities with respect to this Agreement or any other Loan Document; it being understood and agreed that each of the Joint Lead Arrangers, the Syndication Agent and the Co-Documentation Agents shall be entitled to all indemnification and reimbursement rights in favor of the Agents provided herein and in the other Loan Documents. Without limitation of the foregoing, neither the Joint Lead Arrangers, the Syndication Agent nor the Co-Documentation Agents in their respective capacities as such shall, by reason of this Agreement or any other Loan Document, have any fiduciary relationship in respect of any Lender, Loan Party or any other Person.

Appears in 2 contracts

Sources: Credit Agreement (Calpine Corp), Credit Agreement (Calpine Corp)

Agents. In order to expedite the transactions contemplated by this Agreement, (a) The Chase Manhattan Bank is hereby appointed to act as Agent on behalf of the Lenders and (b) The CIT Group/Commercial Services, Inc. is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and each subsequent holder of any Note or Letter of Credit Issuer by its acceptance thereof, irrevocably authorizes the ~~Issuing Banks hereby irrevocably appoints BofA (~~Agent to take such action on its behalf and to exercise such powers hereunder and under the Security Documents and other Loan Documents as are specifically delegated to or required of the Agent by the terms hereof and the terms thereof together with such powers as are reasonably incidental thereto. Each of the Lenders and each subsequent holder of any Note or any ~~successor appointed pursuant hereto) as Administrative Agent and~~ Letter of Credit Issuer by its acceptance thereof, irrevocably authorizes the Administrative Agent to take such ~~actions~~ action on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers hereunder and under the other Loan Documents as are specifically delegated to or required of the Administrative Agent by the terms of hereof and the ~~Loan Documents,~~ terms thereof together with such ~~actions and~~ powers as are reasonably incidental thereto. ~~Any Person serving~~ Neither the Agent, the Administrative Agent, nor any of their respective directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) other than to the extent that such action or omission directly results in a loss, claim or liability arising out of the gross negligence or willful misconduct of the Agent or Administrative Agent (as the case may be) or any of their respective directors, officers, employees or agents, as determined by a final judgment of a court of competent jurisdiction. The Administrative Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder paid to the Administrative Agent, and promptly to distribute to each Lender its proper share of all payments so received. Each of the Administrative Agent and the Agent are hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in the Security Documents and other Loan Documents as received by the Agent or the Administrative Agent (as the case may be) and (b) to take all actions with respect to this Agreement and the Security Documents and other Loan Documents as are specifically delegated to the Administrative Agent or the Agent (as the case may be). In the event that (a) any Borrower fails to pay when due the principal of or interest on any Note, any amount payable under any Letter of Credit or Letter of Credit Guaranty, or any fee payable hereunder or (b) the Administrative Agent receives written notice of the occurrence of a Default or an Event of Default, the Administrative Agent within a reasonable time shall give written notice thereof to the Lenders, and the Agent (upon the occurrence and continuance of an Event of Default) or the Administrative Agent shall take such action with respect to such Event of Default or other condition or event as it shall be directed to take by the Required Lenders; provided, however, that, unless and until the Administrative Agent or the Agent (as the case may be) shall have received such directions, the Administrative Agent or the Agent (as the case may be) may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Default or Event of Default as it shall deem advisable in the best interests of the Lenders. Neither the Agent nor the Administrative Agent shall be responsible in any manner to any of the Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or due execution of this Agreement, the Notes or any of the other Loan Documents or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be under any obligation to ascertain or inquire as to the performance or observance of any of the terms, provisions, covenants, conditions, agreements or obligations of this Agreement or any of the other Loan Documents or any other agreements on the part of the Borrowers and, without limiting the generality of the foregoing, each of the Agent and the Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement or any of the other Loan Documents as conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. It is understood and agreed that each of the Agent and the Administrative Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party (including, without limitation, factoring arrangements), and engage in other transactions with the Borrowers, as though it were not Agent or Administrative Agent (as the case may be) of the Lenders hereunder. Each of the Agent and the Administrative Agent shall promptly give notice to the Lenders of the receipt or sending of any notice, schedule, report, projection, financial statement or other document or information pursuant to this Agreement or any of the other Loan Documents and shall promptly forward a copy thereof to each Lender. Neither the Agent, the Administrative Agent, nor any of their respective directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure or delay in performance or breach by any Lender other than the Agent or Administrative Agent (as the case may be) of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrowers of any of their respective obligations hereunder or in connection herewith. Each of the Agent and the Administrative Agent may consult with legal counsel selected by it in connection with matters arising under this Agreement or any of the other Loan Documents and any action taken or suffered in good faith by it in accordance with the opinion of such counsel shall be full justification and protection to it. Each of the Agent and the Administrative Agent may exercise any of its powers and rights and perform any duty under this Agreement or any of the other Loan Documents through agents or attorneys. The Administrative Agent and the Borrowers may deem and treat the payee of any Note as the holder thereof until written notice of transfer shall have been delivered as provided herein by such payee to the Administrative Agent and the Borrowers. With respect to the Loans made hereunder, the Notes issued to it and any other Credit Event applicable to it, each of the Agent and the Administrative Agent in its individual capacity and not as an Agent or an Administrative Agent (as the case may be) shall have the same ~~rights~~ rights, powers and ~~powers~~ duties hereunder and under any other agreement executed in ~~its capacity as a Lender~~ connection herewith as any other Lender and may exercise the same as though it were not the Agent or the Administrative ~~Agent~~Agent (as the case may be), and each of the ~~term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless~~ Agent and the ~~context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as~~ Administrative Agent ~~hereunder in its individual capacity. Such Person~~ and ~~its Affiliates~~ their respective 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 (including, without limitation, factoring arrangements) with ~~any Loan Party or any Subsidiary of any Loan Party~~ the Borrowers or other ~~Affiliate~~ affiliate thereof as if it were not the Agent or the Administrative Agent (as the case may be). Each Lender agrees (i) to reimburse the Administrative Agent and the Agent in the amount of such Lender's pro rata share (based on its Total Commitment hereunder~~. The~~ ) of any expenses incurred for the benefit of the Lenders ~~acknowledge that, pursuant to such activities,~~ by the Administrative Agent or the Agent (as the case may be), including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, not reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Administrative Agent and the Agent and any of their respective directors, officers, employees or agents, on demand, in the amount of its ~~Affiliates~~ pro rata share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including, without limitation, attorneys fees and disbursements) which may ~~receive information regarding any Loan Party~~ be imposed on, incurred by or asserted against it in its capacity as the Administrative Agent or the Agent (as the case may be) or any of ~~its Affiliates (including information that may be subject~~ them in any way relating to ~~confidentiality obligations in favor~~ or arising out of ~~such Loan Party~~ this Agreement or ~~such Affiliate) and acknowledge that the Administrative Agent shall not be under~~ any obligation to provide such information to them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the 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 exists, and the use of the term “agent” herein and in the other Loan Documents ~~with reference to the Administrative Agent is not intended to connote~~ or any ~~fiduciary~~ action taken or ~~other implied (~~omitted by them or ~~express) obligations arising~~ any of them under ~~agency doctrine of~~ this Agreement or any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the other Loan Documents, ~~the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating~~ to the ~~Borrower or any of its Restricted Subsidiaries that is communicated to or obtained~~ extent not reimbursed by the ~~Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent~~ Borrowers; provided, however, that no Lender shall ~~not~~ be liable to the ~~Lenders~~ Agent or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as is necessary, or as the Administrative Agent ~~believes in good faith shall be necessary~~(as the case may be) for any portion of such liabilities, ~~under~~ obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements to the ~~relevant circumstances as provided in Section 9.02)~~ extent that such liabilities, obligations, losses, damages, penalties, actions, judgment, suits, costs, expenses or in disbursements directly resulted from the ~~absence of its own~~ gross negligence or willful ~~misconduct~~misconduct of the Agent or the Administrative Agent (as the case may be) or any of their respective directors, officers, employees or agents, as determined by ~~the~~ a final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent 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 hereunder or in connection with any Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent shall be entitled to rely upon, 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) that it believes to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. 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 and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article 8 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 the Administrative Agent. The Secured Parties agree that the Administrative Agent shall not be responsible to the Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative Agent may resign at any time by giving ten days’ written notice to the Lenders, the Issuing Banks and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be required. If no successor has been appointed as provided above and accepted such appointment within ten days after the retiring Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of a retirement, 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 meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8. Upon the acceptance of its appointment as Administrative Agent ▇▇▇▇▇▇▇▇▇ as a successor Administrative Agent, the successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the Borrower to any successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 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 action taken or omitted to be taken by any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Agent, the Administrative Agent or any other Lender ~~or any of their Related Parties~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement and any other Loan Document to which such Lender is party. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Agent, the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder. Subject to the appointment and acceptance of a successor Agent or successor Administrative Agent as provided below, each of the Agent and the Administrative Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Lenders shall have the right to appoint a successor Agent or successor Administrative Agent (as the case may be). If no successor Agent or successor Administrative Agent (as the case may be) shall have been so appointed by such Lenders and shall have accepted such appointment within 30 days after the retiring Agent or Administrative Agent (as the case may be) gives notice of its resignation, then the retiring Agent or Administrative Agent (as the case may be) may, on behalf of the Lenders, appoint a successor Agent or successor Administrative Agent (as the case may be) which shall be a financial institution with an office (or an affiliate with an office) in New York, New York, having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Agent or Administrative Agent (as the case may be) hereunder by a successor financial institution, such successor shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent or Administrative Agent (as the case may be) and the retiring Agent or Administrative Agent (as the case may be) shall be discharged from its duties and obligations hereunder and under each of the other Loan Documents. After any Agent's or Administrative Agent's resignation hereunder, the provisions of this Article shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent or Administrative Agent (as the case may be). The Lenders hereby acknowledge that neither the Agent nor the Administrative Agent shall be under any duty to take any discretionary action permitted to be taken by the Agent or Administrative Agent (as the case may be) pursuant to the provisions of this Agreement or any of ~~their respective~~ the other Loan Documents unless it shall be requested in writing to do so by the Required Lenders.

Appears in 2 contracts

Sources: Credit Agreement (Donnkenny Inc), Credit Agreement (Donnkenny Inc)

Agents. ~~Each~~ (a) Seller acknowledges and agrees that the Investor is acting as agent for and on behalf of the ~~Lenders~~ Pecuniary Owner and the Issuing Banks hereby irrevocably appoints BofA (or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, 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. Any Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 any Loan Party or any Subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the ~~Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent~~ Investor shall not have any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject~~ liability to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to discloseSeller, and shall not be ~~liable~~ obligated to purchase securities hereunder with respect to which the Pecuniary Owner was obligated to but did not purchase. (b) In the event that the Investor shall no longer act as agent for the failure to disclose, any information relating to the Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request and on behalf of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as is necessary, or as the Administrative Agent believes in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, Pecuniary Owner in connection with ~~its duties expressly set forth herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to~~ the ~~Administrative Agent~~ matters contemplated by ~~the Borrower or any Lender~~this Agreement, ~~and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into~~ then (i) any ~~statement, warranty or representation made in or in connection with any Loan Document, (ii~~agent(s) appointed by the ~~contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii~~Pecuniary Owner as successor agent(s) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the ~~Administrative Agent pursuant~~ Investor shall be entitled to, and to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent exercise on behalf of the ~~Secured Parties in accordance~~ Pecuniary Owner, all of the rights and remedies provided for herein with respect to the ~~terms hereof or thereof,~~ Investor and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 ~~sale~~time as no successor agent(s) shall have been appointed by the Pecuniary Owner, the Pecuniary Owner shall be entitled to ~~use and apply~~ exercise all ~~or any portion~~ of the ~~Obligations~~ rights and remedies provided for herein in its individual capacity, including the right to obtain, upon request, copies of all documents and notices as ~~a credit~~ specified herein. In the event that the Investor shall no longer act as agent on ~~account~~ behalf of the ~~purchase price for~~ Pecuniary Owner hereunder, all consents or waivers of the Investor necessary to effect any ~~Collateral payable~~ action hereunder shall be required to be given by any successor agent(s) appointed by the ~~Administrative Agent at such Disposition and (B~~Pecuniary Owner or, if no successor(s) has been appointed, by the ~~Administrative Agent or any Lender may be~~ Pecuniary Owner, prior to the ~~purchaser or licensor of all or any portion~~ consummation of such ~~Collateral at any~~ action. (c) Until such ~~Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity~~ time as ~~such~~ Seller shall have ~~any rights in connection with~~ received a written notice from the ~~management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees~~ Pecuniary Owner that the ~~Administrative Agent may in its sole discretion~~Investor is no longer acting as the Pecuniary Owner's agent hereunder, ~~but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent~~ Seller shall be entitled to rely ~~upon, and shall not incur~~ on 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) that it believes to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. 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 and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent instructions and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article 8 shall apply to any such sub-agent and to notices received from 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 the Administrative Agent. The Secured Parties agree that the Administrative Agent shall not be responsible to the Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative Agent may resign at any time by giving ten days’ written notice to the Lenders, the Issuing Banks and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be required. If no successor has been appointed as provided above and accepted such appointment within ten days after the retiring Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of a retirement, the retiring Administrative Agent may (but shall not be obligated to), Investor on behalf of the ~~Lenders and~~ Pecuniary Owner as if received from the Issuing Banks, appoint a successor Administrative Agent meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8. Upon the acceptance of its appointment as Administrative Agent ▇▇▇▇▇▇▇▇▇ as a successor Administrative Agent, the successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the Borrower to any successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 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 action taken or omitted to be taken by any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their respective Pecuniary Owner directly.

Appears in 2 contracts

Sources: Common Share Purchase Agreement (American Industrial Properties Reit Inc), Common Share Purchase Agreement (American Industrial Properties Reit Inc)

Agents. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably appoints ~~BofA (or any successor appointed pursuant hereto) as~~ the Administrative Agent and each Several L/C Agent as its agent hereunder and under the other Loan Documents and authorizes the Administrative Agent and/or such Several L/C Agent, as applicable, to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to the Administrative Agent or such Several L/C Agent by the terms ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Any Person serving as ~~Administrative~~ an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ such Agent, and ~~the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless~~ such ~~Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 any Loan Party~~ with, the Borrowers or any Subsidiary ~~of any Loan Party~~ or other Affiliate thereof as if it were not ~~the Administrative~~ such Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative No Agent shall ~~not be under any obligation to provide such information to them. The Administrative 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, (a) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, has occurred and is ~~intended to create or reflect only an administrative relationship between independent contracting parties~~continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary ~~power~~powers, except discretionary rights and powers ~~that are~~ expressly contemplated hereby or by the other Loan Documents ~~and which the Administrative~~ that such Agent is required to exercise in writing ~~as directed~~ by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth herein and in the other Loan Documents, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, ~~and shall not~~ or be liable for the failure to disclose, any information relating to ~~the~~ any Borrower or any of its ~~Restricted~~ Subsidiaries that is communicated to or obtained by the Person serving as ~~Administrative~~ such Agent or any of its Affiliates in any capacity. ~~The Administrative~~ No Agent shall ~~not~~ be liable ~~to the Lenders or any other Secured Party~~ for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as is necessary, or as the Administrative Agent believes in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or ~~willful~~ wilful misconduct~~, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein~~. ~~The Administrative~~ No Agent shall ~~not~~ be deemed to have knowledge of any ~~Default or Event of~~ Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by the ~~Borrower~~ Borrowers or ~~any~~ a Lender, and ~~the Administrative~~ no Agent 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 ~~with any Loan Document~~herewith or therewith, (iii) the performance or observance of any ~~covenant~~of the covenants, ~~agreement~~ agreements or other ~~term~~ terms or ~~condition~~ conditions set forth ~~in any Loan Document~~ herein or ~~the occurrence of any Default or Event of Default~~therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or ~~document,~~ document or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 IV or elsewhere ~~in any Loan Document~~herein or therein, other than (in the case of the Administrative Agent) to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof~~Agent. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent shall be entitled to rely upon, 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) that~~ believed by it ~~believes~~ to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper Person. ~~The Administrative~~ Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to ~~have been~~ be made by the proper ~~Person~~ Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Each Agent may consult with legal counsel (who may be counsel for ~~the~~ any 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~~ Each Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itsuch Agent. ~~The Administrative~~ Each Agent and any such sub-agent may perform any and all ~~of their respective~~ its duties and exercise ~~their respective~~ its rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article 8~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the Administrative~~ each Agent and any such sub-~~agent~~ 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 ~~the Administrative~~ an Agent. ~~The Secured Parties agree that~~ Subject to the appointment and acceptance of a successor Administrative Agent ~~shall not be responsible to~~ as provided in this paragraph, the Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative Agent may resign at any time by ~~giving ten days’ written notice to~~ notifying the ~~Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company; provided that if ~~no successor agent is appointed in accordance with~~ the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If Person acting as the Administrative Agent at any time is also acting as a ~~Defaulting Lender or an Affiliate of a Defaulting Lender~~Several L/C Agent, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such ~~10-day period, the Administrative Agent’s removal shall,~~ Person shall also resign as such Several L/C Agent at ~~the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of~~ such ~~10-day period~~time. Upon ~~receipt of~~ any such ~~notice of resignation or delivery of any such notice of removal~~resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld or delayed)~~Company, to appoint a successor Administrative Agent (which Person shall also be appointed as a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) orsuccessor Several L/C Agent, ~~with respect to any Borrower, Section 7.01(f) or (g~~if applicable)~~, no consent of the Borrower shall be required~~. If no successor ~~has~~ shall have been so appointed ~~as provided above~~ by the Required Lenders and shall have accepted such appointment within ~~ten~~ 30 days after the retiring Administrative Agent gives notice of its ~~resignation or the Administrative Agent receives notice of removal~~resignation, then ~~(a) in the case of a retirement,~~ the retiring 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 ~~meeting the qualifications set forth above~~ (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirementand, if ~~the Administrative Agent notifies the Borrower~~applicable, ~~the Lenders and the Issuing Banks that no qualifying Person has accepted~~ successor Several L/C Agent) which shall be a bank with an office in New York, New York, or an Affiliate of any such ~~appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then~~bank, in each ~~case, such resignation or removal shall nonetheless become effective in accordance~~ case with ~~the provisos to the first two sentences in this paragraph~~ a combined capital and ~~(i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case~~ surplus of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8at least $500,000,000. Upon the acceptance of its appointment as Administrative Agent ~~▇▇▇▇▇▇▇▇▇ as~~ (and, if applicable, Several L/C Agent) hereunder by a successor, such successor ~~Administrative Agent, the successor Administrative Agent~~ shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or ~~removed~~ retired) Administrative Agent (~~other than any rights to indemnity payments owed to~~ and, if applicable, Several L/C Agent) and the retiring Administrative Agent (and, if applicable, Several L/C Agent~~), and the retiring or removed Administrative Agent~~ ) shall be discharged from its duties and obligations hereunder (~~other than its obligations under Section 9.13 hereof~~if not already discharged therefrom as provided above in this paragraph). The fees payable by the ~~Borrower~~ Company to ~~any~~ a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such ~~successor Administrative Agent~~successor. After the Administrative Agent’s (and, if applicable, Several L/C Agent’s) resignation ~~or removal~~ hereunder, the provisions of this Article and Section 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 ~~action~~ actions taken or omitted to be taken by ~~any of them~~ it while ~~the relevant Person~~ it was acting as Administrative Agent (~~including for this purpose holding any collateral security following the retirement or removal of the Administrative~~ and, if applicable, Several L/C Agent). ~~Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent.~~ Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender ~~or any of their Related Parties~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any ~~of their respective~~ related agreement or any document furnished hereunder or thereunder.

Appears in 2 contracts

Sources: Credit Agreement (American International Group Inc), Credit Agreement (American International Group Inc)

Agents. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably appoints ~~BofA (or any successor appointed pursuant hereto)~~ JPMorgan Chase Bank, N.A. as Administrative Agent hereunder and authorizes the Administrative Agent to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~Any Person~~ Each of the Lenders hereby irrevocably appoints JPMorgan Chase Bank, N.A. as Collateral Agent hereunder 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, together with such actions and powers as are reasonably incidental thereto. Each of the Lenders hereby authorizes the Collateral Agent to enter into each of the Collateral Documents and authorizes both the Administrative Agent and Collateral Agent to enter into the Intercreditor Agreement. The bank serving as the Administrative Agent or the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent or the Collateral Agent, and ~~the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless~~ such ~~Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 ~~any Loan Party~~ Holdings, Borrower or any Subsidiary ~~of any Loan Party~~ or other Affiliate thereof as if it were not the Administrative Agent or the Collateral Agent hereunder. ~~The Lenders acknowledge that, pursuant to such activities,~~ Neither the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that nor the ~~Administrative~~ Collateral Agent shall ~~not be under any obligation to provide such information to them. The Administrative 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, (a) neither the Administrative Agent nor the Collateral Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, has occurred and is ~~intended to create or reflect only an administrative relationship between independent contracting parties~~continuing, (b) neither the Administrative Agent nor the Collateral Agent shall ~~not~~ have any duty to take any discretionary action or exercise any discretionary ~~power~~powers, except discretionary rights and powers ~~that are~~ expressly contemplated ~~by the Loan Documents and which~~ hereby that the Administrative Agent or the Collateral Agent, as applicable is required to exercise in writing as directed by the ~~Required Lenders or Required Revolving~~ Requisite Lenders (or such other number or percentage of the Lenders as shall be necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.5); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth ~~in the Loan Documents~~herein, neither the Administrative Agent nor the Collateral Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the~~ Holdings, Borrower or any of its ~~Restricted~~ Subsidiaries that is communicated to or obtained by the ~~Person~~ bank serving as Administrative Agent, Collateral Agent or any of ~~its~~ their respective Affiliates in any capacity. ~~The~~ Neither the Administrative Agent nor the Collateral Agent shall ~~not~~ be liable ~~to the Lenders or any other Secured Party~~ for any action taken or not taken by it with the consent or at the request of the ~~Required Lenders or Required Revolving~~ Requisite Lenders (or such other number or percentage of the Lenders as ~~is necessary, or as the Administrative Agent believes in good faith~~ shall be ~~necessary,~~ necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.5) or in the absence of its own gross negligence or willful misconduct~~, as determined by~~ . Neither the ~~final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The~~ Administrative Agent nor the Collateral Agent shall ~~not~~ 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 or the Collateral Agent, as applicable by ~~the~~ Borrower or ~~any~~ a Lender, and neither the Administrative Agent nor the Collateral Agent 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 ~~Loan~~ other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~with any Loan Document~~herewith, (iii) the performance or observance of any ~~covenant~~of the covenants, ~~agreement~~ agreements or other ~~term~~ terms or ~~condition~~ conditions set forth ~~in any Loan Document or the occurrence of any Default or Event of Default~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan~~ this Agreement or other Credit Document or any other agreement, instrument or document, (v) the creation, perfection or priority of ~~any Lien~~ Liens on the Collateral or the ~~existence, value or sufficiency~~ existence of the ~~Collateral~~ Collateral, or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in ~~Article 4~~ Section 3 or elsewhere herein or in any ~~Loan~~ other Credit Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or ~~(vii) any property, book or record of any Loan Party or any Affiliate thereof. Each Secured Party acknowledges and agrees that~~ the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Collateral Agent, ~~of, among other things, the upcoming lapse or expiration thereof~~as applicable. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and ~~each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of~~ the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent shall be entitled to rely upon, 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) that~~ believed by it ~~believes~~ to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper Person. The Administrative Agent and the Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to ~~have been~~ be made by the proper ~~Person~~ Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the The Administrative Agent ~~may presume that such condition is satisfactory to such Lender unless~~ and the ~~Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative~~ Collateral 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 and the Collateral Agent may perform any and all of its respective duties and exercise its respective rights and powers by or through any one or more sub-agents appointed by itthe Administrative Agent or the Collateral Agent, as applicable. The Administrative Agent, the Collateral Agent and any such sub-agent may perform any and all ~~of their~~ its respective duties and exercise ~~their~~ its respective rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article 8~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent, the Collateral Agent and any such sub-~~agent~~ 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 and Collateral Agent, as applicable. Subject to the appointment and acceptance of a successor Administrative Agent or Collateral Agent~~. The Secured Parties agree that~~ , as applicable as provided in this paragraph, the Administrative Agent ~~shall not be responsible to~~ and the Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative Collateral Agent may resign at any time by ~~giving ten days’ written notice to~~ notifying the ~~Lenders~~Lenders and Borrower. Upon any such resignation, the Issuing Banks and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the Required Requisite Lenders shall have the right, in consultation with ~~the consent of the Borrower (not to be unreasonably withheld or delayed)~~Borrower, to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be requiredsuccessor. If no successor ~~has~~ shall have been so appointed ~~as provided above~~ by the Requisite Lenders and shall have accepted such appointment within ~~ten~~ 30 days after the retiring Administrative Agent or Collateral Agent, as applicable gives notice of its ~~resignation or the Administrative Agent receives notice of removal~~resignation, then ~~(a) in the case of a retirement,~~ the retiring Administrative Agent ~~may (but shall not be obligated to)~~or Collateral Agent, as applicable may, on behalf of the Lenders ~~and the Issuing Banks,~~ appoint a successor Administrative Agent ~~meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower)~~ or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as ~~provided above~~ applicable which shall be a bank with an office in ~~this Article 8~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent ~~▇▇▇▇▇▇▇▇▇ as a successor Administrative~~ or Collateral Agent, ~~the~~ as applicable hereunder by a successor, such successor ~~Administrative Agent~~ shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~or removed~~ Administrative Agent ~~(other than any rights to indemnity payments owed to the retiring Administrative~~ or Collateral Agent), as applicable, and the retiring ~~or removed~~ Administrative Agent or Collateral Agent, as applicable shall be discharged from its duties and obligations ~~hereunder (other than its obligations under Section 9.13 hereof)~~hereunder. The fees payable by ~~the~~ Borrower to ~~any~~ a successor Administrative Agent or Collateral Agent, as applicable shall be the same as those payable to its predecessor unless otherwise agreed between ~~the~~ Borrower and such ~~successor Administrative Agent~~successor. After the Administrative Agent’s or the Collateral Agent’s resignation ~~or removal~~ hereunder, the provisions of this Article and ~~Section 9.03~~ Sections 10.2 and 10.3 shall continue in effect for the benefit of such retiring Administrative Agent or ~~removed Administrative~~ Collateral Agent, as applicable, its ~~sub-~~sub agents and their respective Related Parties in respect of any ~~action~~ actions taken or omitted to be taken by any of them while ~~the relevant Person~~ it was acting as Administrative Agent ~~(including for this purpose holding any collateral security following the retirement~~ or ~~removal of the Administrative~~ Collateral Agent~~). Notwithstanding anything to the contrary herein~~, ~~no Disqualified Institution (nor any Affiliate thereof) may be appointed~~ as ~~a successor Administrative Agent~~applicable. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative Agent, the Collateral Agent or any other Lender ~~or any of their Related Parties~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby further authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the benefit of Lenders, to be the agent for and representative of Lenders with respect to the Guaranty, the Collateral and the Collateral Documents. Subject to Section 10.5, without further written consent or authorization from Lenders, Administrative Agent or Collateral Agent, as applicable may execute any documents or instruments necessary to (i) release any Lien encumbering any item of Collateral that is the subject of a sale or other disposition of assets permitted hereby or to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented or (ii) release any Guarantor from the Guaranty pursuant to Section 7.12 or with respect to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented. Anything contained in any of the Credit Documents to the contrary notwithstanding, Company, Administrative Agent, Collateral Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by Administrative Agent, on behalf of Lenders in accordance with the terms hereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by Collateral Agent, and (ii) in the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale, Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Requisite 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 Obligations as a credit on account of the purchase price for any collateral payable by Collateral Agent at such sale.

Appears in 2 contracts

Sources: Credit and Guaranty Agreement (Douglas Dynamics, Inc), Credit and Guaranty Agreement (Douglas Dynamics, Inc)

Agents. SECTION 11. 01Appointment. Each Lender (and, if applicable, each other Secured Party) hereby appoints Chicago Atlantic as its Collateral Agent under and for purposes of each Credit Document, and hereby authorizes Collateral Agent to act on behalf of such Lender (or if applicable, each other Secured Party) under each Credit Document, and, in the absence of other written instructions from the Lenders pursuant to the terms of the ~~Lenders and the Issuing Banks hereby irrevocably appoints BofA (or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent~~ Credit Documents received from time to ~~take such actions on its behalf~~time by Collateral Agent, ~~including execution of the other Loan Documents, and~~ to exercise such powers hereunder and thereunder as are specifically delegated to or required of Collateral Agent by the terms hereof and thereof, together with such powers as may be incidental thereto. Each Lender (and, if applicable, each other Secured Party) hereby appoints Chicago Atlantic as its Administrative Agent under and for purposes of each Credit Document and hereby authorizes Administrative Agent to act on behalf of such Lender (or, if applicable, each other Secured Party) under each Credit Document and, in the absence of other written instructions from the Lenders pursuant to the terms of the Credit Documents received from time to time by Administrative Agent, to exercise such powers hereunder and thereunder as are specifically delegated to or required of Administrative Agent by the terms ~~of the Loan Documents~~hereof and thereof, together with such ~~actions and~~ powers as ~~are reasonably~~ may be incidental thereto. ~~Any Person serving as Administrative~~ Each Lender (and, if applicable, each other Secured Party) hereby designates and appoints each Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 any Loan Party or any Subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor agent of such ~~Loan Party or such Affiliate) and acknowledge that~~ Lender. Notwithstanding any provision to the ~~Administrative~~ contrary elsewhere in this Agreement, no Agent shall ~~not be under any obligation to provide such information to them. The Administrative Agent shall not~~ have any duties or ~~obligations~~ responsibilities, except those expressly set forth ~~in the Loan Documents. Without limiting the generality of the foregoing~~herein, ~~(a) the Administrative Agent shall not be subject to~~ or any fiduciary relationship with any Lender or other Secured Party, and no implied covenants, functions, responsibilities, duties, ~~regardless of whether a Default~~ obligations or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as liabilities shall be necessary under the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders read into this Agreement or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as is necessary, or as the Administrative Agent believes in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent 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 hereunder or in connection with any Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Credit Document or ~~the occurrence of~~ otherwise exist against any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereofAgent. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary Anything contained ~~herein or~~ in any of the ~~other Loan Documents~~Credit Documents to the contrary notwithstanding, ~~the Borrower~~each Credit Party, ~~the~~ Administrative Agent, Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the ~~Loan Guaranty;~~ Security Agreement or any other Security Documents, it being understood and agreed that ~~any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document~~ all powers, rights and remedies hereunder may be exercised solely by ~~the Administrative Agent~~ Agents, on behalf of the Secured Parties in accordance with the terms ~~hereof or thereof~~hereof, and all powers, rights and remedies under the Security Documents may be exercised solely by Agents, and (ii) in the event of a foreclosure by ~~the Administrative Agent~~ any of Agents on any of the Collateral pursuant to a public or private sale or in other disposition, any Agent or any Lender may be the ~~event~~ purchaser or licensor of any or all of such Collateral at any such sale or other ~~Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative~~ disposition and each Agent, as agent for and representative of the Secured ~~Parties,~~ Parties (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 ~~all or~~ any ~~portion~~ of the Obligations (including Obligations owed to any other Secured Party) as a credit on account of the purchase price for any Collateral payable by ~~the Administrative~~ such Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document sale or other writing (including any electronic message, Internet or intranet website posting or other distribution) that it believes to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. 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 and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article 8 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 the Administrative Agent. The Secured Parties agree that the Administrative Agent shall not be responsible to the Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative Agent may resign at any time by giving ten days’ written notice to the Lenders, the Issuing Banks and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be required. If no successor has been appointed as provided above and accepted such appointment within ten days after the retiring Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of a retirement, 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 meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8. Upon the acceptance of its appointment as Administrative Agent ▇▇▇▇▇▇▇▇▇ as a successor Administrative Agent, the successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the Borrower to any successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 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 action taken or omitted to be taken by any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their respective disposition.

Appears in 1 contract

Sources: Credit Agreement (Goodness Growth Holdings, Inc.)

Agents. Each of the Lenders and the Issuing Banks hereby irrevocably appoints ~~BofA (or any successor appointed pursuant hereto) as~~ the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~Any Person~~ The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and ~~the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless~~ such ~~Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 ~~any Loan Party~~ the Borrower or any Subsidiary ~~of any Loan Party~~ or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative 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, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, has occurred and is ~~intended to create or reflect only an administrative relationship between independent contracting parties~~continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary ~~power~~powers, except discretionary rights and powers ~~that are~~ expressly contemplated ~~by the Loan Documents and which~~ hereby that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required ~~Lenders or Required Revolving~~ Lenders (or such other number or percentage of the Lenders as shall be necessary under the ~~relevant~~ circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as is necessary, or as the Administrative Agent believes in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent 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 hereunder or in connection with any Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent shall be entitled to rely upon, 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) that it believes to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. 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 and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article 8 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 the Administrative Agent. The Secured Parties agree that the Administrative Agent shall not be responsible to the Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative Agent may resign at any time by giving ten days’ written notice to the Lenders, the Issuing Banks and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent of the Borrower shall be required. If no successor has been appointed as provided above and accepted such appointment within ten days after the retiring Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of a retirement, 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 meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8. Upon the acceptance of its appointment as Administrative Agent ▇▇▇▇▇▇▇▇▇ as a successor Administrative Agent, the successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the Borrower to any successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 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 action taken or omitted to be taken by any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their respective the

Appears in 1 contract

Sources: Credit Agreement (NCR Corp)

Agents. ~~Each~~ The Issuer shall at all times maintain an office or agency in The City of New York, which shall initially be the office of the Lenders and the Issuing Banks hereby irrevocably appoints BofA (or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, 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. Any Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 any Loan Party or any Subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent shall not have any duties or obligations except those expressly set forth Trustee in the ~~Loan Documents. Without limiting the generality~~ Borough of ~~the foregoing~~Manhattan, The City of New York, where (a) the ~~Administrative Agent shall not~~ Notes may be ~~subject to any fiduciary~~ presented or ~~other implied duties, regardless~~ surrendered for registration of ~~whether a Default~~ transfer or ~~Event of Default exists,~~ for exchange and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the ~~Administrative Agent~~ Notes may be presented or surrendered for payment. The Registrar shall ~~not have~~ keep a register of the Notes and of their transfer and exchange (the “Register”). Such offices or agencies shall be initially at the Corporate Trust Office. Written notice of any ~~duty~~ change of location thereof shall be given by the Trustee to ~~take any discretionary action~~ the Issuer and the Holders. In the event that no such notice of location or ~~exercise any discretionary power~~of change of location shall be given, ~~except discretionary rights~~ presentations and ~~powers that are expressly~~ demands may be made and notices (other than the type contemplated by Section 12.13) may be served at the ~~Loan Documents and which~~ Corporate Trust Office. The Issuer, upon prior written notice to the Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counselTrustee, may ~~expose the Administrative Agent to liability~~ have one or ~~that is contrary to any Loan Document~~ more additional Transfer Agents and one or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating more additional Paying Agents reasonably acceptable to the ~~Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity~~Trustee. The ~~Administrative Agent shall not be liable to the Lenders or~~ term “Paying Agent” includes any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as is necessary, or as the Administrative Agent believes in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinadditional Paying Agent. The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent 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 hereunder or in connection with any Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party Issuer or any Affiliate ~~thereof~~of the Issuer may act as Paying Agent. ~~Each Secured Party acknowledges~~ The Issuer shall enter into an appropriate agency agreement with any Agent not a party to this Indenture, which agreement shall incorporate the provisions of the Trust Indenture Act and ~~agrees~~ implement the provisions of this Indenture that relate to such Agent. The Issuer shall notify the ~~Administrative~~ Trustee in writing, in advance, of the name and address of any such Agent ~~may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings~~ and ~~registrations from time to time) required to~~ otherwise be ~~filed or recorded pursuant~~ reasonably satisfactory to the ~~Loan Documents and~~ Trustee. If the ~~notification~~ Issuer fails to ~~the Administrative~~ maintain a Transfer Agent or Paying Agent, ~~of, among other things~~or fails to give the foregoing notice, the ~~upcoming lapse or expiration thereof~~Trustee shall act as such. The ~~Secured Parties agree that~~ Issuer hereby initially appoints The Bank of New York Mellon at its Corporate Trust Office, as the ~~Administrative Agent shall not be liable~~ Trustee hereunder, and The Bank of New York Mellon hereby accepts such appointment. The Trustee will have the powers and authority granted to and conferred upon it in the ~~Secured Parties for any action taken or not taken by any~~ Notes and hereby and such ~~service provider. Notwithstanding anything~~ further powers and authority to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent act on behalf of the ~~Secured Parties in accordance with~~ Issuer as may be mutually agreed upon by the ~~terms hereof or thereof~~Issuer and the Trustee, and ~~(ii) in~~ the ~~event~~ Trustee will keep a copy of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent this Indenture available for ~~and representative of the Secured Parties, 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~~ inspection during normal business hours at any such sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the CollateralCorporate Trust Office. The ~~Administrative Agent shall be entitled~~ Issuer initially appoints the Trustee to ~~rely upon~~act as the Registrar, 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) that it believes to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. 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 and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Transfer Agent and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article 8 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 the Administrative Paying Agent. The Secured Parties agree that the Administrative Agent shall not be responsible to the Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative Any Agent may resign ~~at any time by giving ten~~ upon thirty (30) days’ written notice to the Lenders, the Issuing Banks and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier Issuer. The Issuer initially appoints DTC to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, act as Depositary with respect to ~~any Borrower, Section 7.01(f) or (g), no consent of~~ the Borrower shall be required. If no successor has been appointed as provided above and accepted such appointment within ten days after the retiring Administrative Agent gives notice of its resignation or the Administrative Agent receives notice of removal, then (a) in the case of a retirement, 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 meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8. Upon the acceptance of its appointment as Administrative Agent ▇▇▇▇▇▇▇▇▇ as a successor Administrative Agent, the successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the Borrower to any successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 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 action taken or omitted to be taken by any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their respective Global Notes.

Appears in 1 contract

Sources: Indenture (Natura &Co Holding S.A.)

Agents. Each of the ~~Lenders and~~ Lenders, the Issuing Banks and the other Agents hereby irrevocably appoints ~~BofA (or any successor appointed pursuant hereto)~~ JPMorgan Chase Bank, N.A., as the Global Administrative ~~Agent~~ Agent, JPMorgan Chase Bank, N.A., Toronto Branch, as the Canadian Administrative Agent, BNP Paribas and Bank of America, N.A., as Co-Global Syndication Agents, and Fortis Capital Corp., The Bank of Nova Scotia and Deutsche Bank Trust Company Americas, as Co-Global Documentation Agents, and authorizes ~~the Administrative~~ each such Agent to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any ~~Person~~ bank serving as ~~Administrative~~ an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless~~ such ~~Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 ~~any Loan Party~~ the Borrower or any Subsidiary ~~of any Loan Party~~ or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, has occurred and is ~~intended to create or reflect only an administrative relationship between independent contracting parties~~continuing, (b) ~~the Administrative~~ each Agent shall not have any duty to take any discretionary action or exercise any discretionary ~~power~~powers, except discretionary rights and powers ~~that are~~ expressly contemplated by the Loan Documents ~~and which the Administrative~~ that such Agent is required to exercise ~~in writing as directed by~~ following its receipt of written instructions from the Required ~~Lenders or Required Revolving~~ Lenders (or such other number or percentage of the Combined Lenders as shall be necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.2); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the ~~Administrative Agent~~ Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent, the Borrower or any of its ~~Restricted~~ Subsidiaries that is communicated to or obtained by the ~~Person~~ bank serving as ~~Administrative~~ such Agent or any of its ~~Affiliates~~ Related Parties in any capacity. ~~The Administrative~~ Each Agent shall not be liable ~~to the Lenders or any other Secured Party~~ for any action taken or not taken by it with the consent or at the request of the Required Lenders ~~or Required Revolving Lenders~~ (or such other number or percentage of the Combined Lenders as ~~is necessary, or as the Administrative Agent believes in good faith~~ shall be ~~necessary,~~ necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.2) or in the absence of its own gross negligence or willful misconduct; PROVIDED, ~~as determined by the final judgment of a court of competent jurisdiction~~HOWEVER, ~~in connection with its duties expressly set forth herein~~THAT IT IS THE INTENTION OF THE PARTIES HERETO THAT EACH OF THE AGENTS BE INDEMNIFIED IN THE CASE OF ITS OWN NEGLIGENCE (OTHER THAN GROSS NEGLIGENCE), REGARDLESS OF WHETHER SUCH NEGLIGENCE IS SOLE OR CONTRIBUTORY, ACTIVE OR PASSIVE, IMPUTED, JOINT OR TECHNICAL. ~~The Administrative~~ Each Agent shall ~~not~~ be deemed not to have knowledge of any ~~Default or Event of~~ Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by the Borrower or ~~any~~ a Lender, and ~~the Administrative~~ such Agent 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 ~~hereunder~~ thereunder or in connection ~~with any Loan Document~~therewith, (iii) the performance or observance of any ~~covenant~~of the covenants, ~~agreement~~ agreements or other ~~term~~ terms or ~~condition~~ conditions set forth in any Loan ~~Document or the occurrence of any Default or Event of Default~~Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof~~such Agent. Each Secured Party acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the The Global Administrative Agent, ~~of, among other things,~~ the upcoming lapse or expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Canadian Administrative Agent and ~~each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of~~ the Collateral or to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral. The Administrative Agent Agents shall be entitled to rely upon, 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) that~~ believed by it ~~believes~~ to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper Person. The Global Administrative Agent, the Canadian Administrative Agent and the other Agents also may rely upon any statement made to it orally or by telephone and believed by it to ~~have been~~ be made by the proper ~~Person~~ Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing BankThe Global Administrative Agent, the Canadian Administrative Agent ~~may presume that such condition is satisfactory to such Lender unless~~ and the ~~Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent~~ other 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~~ Any Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itsuch Agent. ~~The Administrative~~ Any Agent and any such sub-agent may perform any and all ~~of their respective~~ its duties and exercise ~~their respective~~ its rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article 8~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the Administrative~~ such Agent and any such sub-~~agent~~ 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 ~~the Administrative~~ an Agent. ~~The Secured Parties agree that~~ Subject to the appointment and acceptance of a successor Global Administrative Agent ~~shall not be responsible to the Secured Parties for the negligence~~ or ~~misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such~~ Canadian Administrative Agent ~~acted with gross negligence~~ as provided in this paragraph, the Global Administrative Agent or ~~willful misconduct in the selection of such sub-agent. The~~ Canadian Administrative Agent may resign at any time by ~~giving ten days’ written notice to~~ notifying the ~~Lenders, the Issuing Banks~~ Combined Lenders and the Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon ~~receipt of~~ any such ~~notice of resignation or delivery of any such notice of removal~~resignation, the Required Lenders shall have the right, with the consent of the Parent and the Borrower (~~not to be unreasonably withheld or delayed~~unless an Event of Default has occurred and is continuing), to appoint a successor. If no successor ~~Administrative Agent which~~ shall ~~be a commercial bank or trust company~~ have been so appointed by the Required Lenders, with ~~offices in~~ such consent of the ~~U.S. having combined capital~~ Parent and ~~surplus in excess of $1,000,000,000; provided that during~~ the ~~existence of~~ Borrower (unless an Event of Default ~~under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g~~has occurred and is continuing), ~~no consent of the Borrower~~ and shall ~~be required. If no successor has been appointed as provided above and~~ have accepted such appointment within ~~ten~~ 30 days after the retiring Global Administrative Agent or the retiring Canadian Administrative Agent gives notice of its ~~resignation or~~ resignation, then the retiring Global Administrative Agent ~~receives notice of removal, then (a) in the case of a retirement, the~~ or retiring Canadian Administrative Agent ~~may~~ may, with the consent of the Parent and the Borrower (~~but shall not be obligated to),~~ unless an Event of Default has occurred and is continuing) on behalf of the Combined Lenders and the Issuing Banks, appoint a successor Global Administrative Agent ~~meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower)~~ or ~~(b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a~~ successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Canadian Administrative Agent, ~~as provided above in this Article 8~~respectively, which shall be a commercial bank organized under the laws of the United States of America or the laws of Canada, respectively, having combined capital and surplus of at least U.S.$100,000,000, or an Affiliate of any such bank. Upon the acceptance of its appointment as Global Administrative Agent ~~▇▇▇▇▇▇▇▇▇ as a successor Administrative Agent, the successor~~ or Canadian Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~or removed~~ Global Administrative Agent ~~(other than any rights to indemnity payments owed to the~~ or retiring Canadian Administrative Agent), as the case may be, and the retiring Global Administrative Agent or ~~removed~~ retiring Canadian Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section ~~9.13 hereof~~10.12). The fees payable by the Borrower to ~~any~~ a successor Global Administrative Agent or successor Canadian Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such ~~successor Administrative Agent~~successor. After the Global Administrative Agent’s or Canadian Administrative Agent’s resignation ~~or removal~~ hereunder, the provisions of this Article and Section ~~9.03~~ 10.3 shall continue in effect for the benefit of such retiring Global Administrative Agent or ~~removed~~ retiring Canadian Administrative Agent, its sub-agents and their respective Related Parties in respect of any ~~action~~ actions taken or omitted to be taken by any of them while ~~the relevant Person~~ it was acting as Global Administrative Agent ~~(including for this purpose holding any collateral security following~~ or the ~~retirement or removal of the~~ Canadian Administrative Agent~~). Notwithstanding anything to the contrary herein~~, ~~no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent~~respectively. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender ~~or any of their Related Parties~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the Intercreditor Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own 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. Each of ~~their respective~~ the Lenders, for itself and on behalf of any of its Affiliates, the Issuing Banks, and the other Agents hereby irrevocably appoints the Global Administrative Agent and the Canadian Administrative Agent to act as its agent under the Intercreditor Agreement and authorizes the Global Administrative Agent and the Canadian Administrative Agent to execute the Intercreditor Agreement on its behalf and to take such actions on its behalf and to exercise such powers as are delegated to the Global Administrative Agent or the Canadian Administrative Agent by the terms hereof and thereof, together with such actions and powers as are reasonably incidental thereto. Without limiting the provisions of Section 7.5(b) of the U.S. Credit Agreement, each of the Lenders, for itself and on behalf of any of its Affiliates, and the Issuing Banks hereby authorize the Global Administrative Agent to release any Collateral or Guaranties that are permitted to be sold or released pursuant to the Loan Documents, and the Global Administrative Agent agrees to promptly release any such items upon written request from the Borrower. Each Lender and each Issuing Bank hereby authorizes the Global Administrative Agent to execute and deliver to the Borrower, at the Borrower’s sole cost and expense, any and all releases of Liens, releases of Guaranties, termination statements, or other documents reasonably requested by the Borrower in connection with (i) any sale or disposition of Collateral, or (ii) any Subsidiary ceasing to be a Material Subsidiary hereunder, or otherwise pursuant to any other transaction permitted by this Agreement or the other Combined Loan Documents.

Appears in 1 contract

Sources: Credit Agreement (Quicksilver Resources Inc)

Agents. In order to expedite the transactions contemplated by this Agreement, Union Bank of California, N.A. is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~the Issuing Banks hereby~~ each subsequent holder of any Note or issuer of any Letter of Credit by its acceptance thereof, irrevocably ~~appoints BofA (or any successor appointed pursuant hereto) as Administrative Agent and~~ authorizes the Administrative Agent to take such ~~actions~~ action on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such actions and powers hereunder and under the Security Documents and other Loan Documents as are specifically delegated to or required of the Administrative Agent by the terms of hereof and the ~~Loan Documents,~~ terms thereof together with such actions and powers as are reasonably incidental thereto. Any Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 any Loan Party or any Subsidiary of any Loan Party or other Affiliate thereof as if it were not Neither the Administrative Agent ~~hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or~~ nor any of its ~~Affiliates (including information that may~~ directors, officers, employees or agents shall be ~~subject~~ liable as such for any action taken or omitted to ~~confidentiality obligations in favor of such Loan Party~~ be taken by it or ~~such Affiliate) and acknowledge that the Administrative Agent shall not be~~ them hereunder or under any obligation to provide such information to them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the ~~foregoing,~~ Security Documents and other Loan Documents or in connection herewith or therewith (a) at the ~~Administrative Agent shall not be subject to any fiduciary~~ request or ~~other implied duties, regardless of whether a Default or Event of Default exists, and~~ with the ~~use~~ approval of the ~~term “agent”~~ Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence or willful misconduct. Notwithstanding any provisions to the contrary elsewhere herein ~~and~~ or in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in writing as directed by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any ~~duty to disclose~~duties or responsibilities except those expressly set forth herein or in the other Loan Documents, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall ~~not~~ be ~~liable for~~ read into the ~~failure to disclose, any information relating to~~ Credit Agreement or in the ~~Borrower~~ other Loan Documents or ~~any of its Restricted Subsidiaries that is communicated to or obtained by~~ otherwise exist against the ~~Person serving as~~ Administrative ~~Agent or any of its Affiliates in any capacity~~Agent. The Administrative Agent ~~shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request~~ is hereby expressly authorized on behalf of the ~~Required Lenders or Required Revolving Lenders~~ Lenders, without hereby limiting any implied authority, (~~or such other number or percentage~~ a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder which are paid to the Administrative Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as ~~is necessary~~provided for in this Agreement or in the Security Documents and other Loan Documents as received by the Administrative Agent (c) to maintain, or in accordance with its customary business practices, ledgers and records reflecting the status of the Loans, the Collateral and related matters, (d) to open and maintain bank accounts and lock boxes as the Administrative Agent ~~believes~~ deems necessary and appropriate in ~~good faith shall be necessary~~accordance with the Loan Documents with respect to the Collateral, ~~under~~ (e) to take all actions with respect to this Agreement and the ~~relevant circumstances~~ Security Documents and other Loan Documents as ~~provided in Section 9.02~~are specifically delegated to the Administrative Agent, and (f) to incur and pay such expenses as the Administrative Agent may deem necessary or ~~in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction,~~ appropriate in connection with ~~its duties expressly set forth herein~~the foregoing. ~~The~~ In the event that (a) any Borrowers fail to pay when due the principal of or interest on any Note, any amount payable under any Letter of Credit, or any fee payable hereunder or (b) the Administrative Agent ~~shall~~ receives written notice of the occurrence of a Default or an Event of Default (the Administrative Agent being deemed not ~~be deemed~~ to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by ~~the~~ any Borrower or ~~any~~ a Lender), the Administrative Agent within a reasonable time shall give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other condition or event as it shall be directed to take by the Required Lenders; PROVIDED, HOWEVER, that, unless and until the Administrative Agent shall ~~not~~ have received such directions, the Administrative Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Default or Event of Default as it shall deem advisable in the best interests of the Lenders. Neither the Administrative Agent nor the Syndication Agent (collectively, the "AGENTS") shall be responsible in any manner to any of the Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or ~~have~~ due execution of this Agreement, the Notes or any ~~duty~~ of the other Loan Documents or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be under any obligation 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 hereunder or in connection with any Loan Document, (iii) as to the performance or observance of any ~~covenant~~of the terms, ~~agreement~~ provisions, covenants, conditions, agreements or obligations of this Agreement or any of the other ~~term or condition set forth in any~~ Loan ~~Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document~~ Documents or any other ~~agreement~~agreements on the part of the Borrowers and, ~~instrument~~ without limiting the generality of the foregoing, the Agents shall, in the absence of knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement or ~~document~~any of the other Loan Documents as conclusive evidence of the facts stated therein and shall be entitled to rely on any note, ~~(v)~~ notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have been signed or sent by the ~~creation~~proper person or persons. It is understood and agreed that each of the Agents may exercise its rights and powers under other agreements and instruments to which it is or may be a party, ~~perfection~~ and engage in other transactions with the Borrowers, as though it were not one of the Agents hereunder. The Administrative Agent shall promptly give notice to the Lenders of the receipt or ~~priority~~ sending of any ~~Lien~~ material notice, schedule, report, projection, financial statement or other document or information pursuant to this Agreement or any of the other Loan Documents and shall promptly forward a copy thereof to each Lender. Neither of the Agents nor any of their respective directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the ~~Collateral~~ failure or delay in performance or breach by any Lender other than such Agents of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the ~~existence, value~~ Borrowers of any of their respective obligations hereunder or ~~sufficiency~~ in connection herewith. Each of the ~~Collateral~~ Agents may consult with legal counsel selected by it in connection with matters arising under this Agreement or any of the other Loan Documents and any action taken or suffered in good faith by it in accordance with the opinion of such counsel shall be full justification and protection to ~~assure that~~ it. Each of the ~~Liens granted~~ Agents may exercise any of its powers and rights and perform any duty under this Agreement or any of the other Loan Documents through agents or attorneys. The Administrative Agent and the Borrowers may deem and treat the payee of any Note as the holder thereof until written notice of transfer shall have been delivered as provided herein by such payee to the Administrative Agent ~~pursuant~~ and the Borrowers. With respect to the Loans made hereunder, the Notes issued to it and any other Credit Event applicable to it, the Administrative Agent in its individual capacity and not as an Administrative Agent shall have the same rights, powers and duties hereunder and under any other agreement executed in connection herewith 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 Borrowers or other affiliate thereof as if it were not the Administrative Agent. Each of the Lenders hereby acknowledges that each of the Agents and/or one or more Affiliates of such Agents may at any time and from time to time be a holder of equity interests in a Loan ~~Document have been or will continue~~ Party. Each Lender agrees (i) to ~~be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority,~~ reimburse each of the Agents in the amount of such Lender's PRO RATA share (vibased on its Revolving Credit Commitment hereunder) ~~the satisfaction~~ of any ~~condition set forth~~ expenses incurred for its own benefit and/or for the benefit of the Lenders by the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, not reimbursed by the Borrowers and (ii) to indemnify and hold harmless each of the Agents and any of their respective directors, officers, employees or agents, on demand, in ~~Article 4~~ the amount of its PRO RATA share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or ~~elsewhere~~ disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in ~~any Loan Document, other than to confirm receipt of items expressly required to be delivered to~~ its capacity as the Administrative Agent or ~~(vii)~~ any ~~property, book~~ of them in any way relating to or ~~record~~ arising out of ~~any Loan Party~~ this Agreement or any ~~Affiliate thereof. Each Secured Party acknowledges and agrees that~~ of the ~~Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or~~ other ~~collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the~~ Loan Documents ~~and the notification to the Administrative Agent, of, among other things, the upcoming lapse~~ or ~~expiration thereof. The Secured Parties agree that the Administrative Agent shall not be liable to the Secured Parties for~~ any action taken or ~~not taken~~ omitted by it or any ~~such service provider. Notwithstanding anything to the contrary contained herein~~ of them under this Agreement or in any of the other Loan Documents, to the ~~Borrower~~extent not reimbursed by the Borrowers; PROVIDED, ~~the Administrative Agent and each Secured Party agree~~ HOWEVER, that ~~(i)~~ no ~~Secured Party~~ Lender shall ~~have any right individually~~ be liable to ~~realize upon~~ any of the ~~Collateral~~ Agents for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgment, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agents or any of their respective directors, officers, employees or agents. The foregoing agreement shall survive the repayment of all Obligations and the termination of this Agreement. With respect to ~~enforce~~ the ~~Loan Guaranty; it being understood that~~ release of Collateral, Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any ~~realization upon the Collateral~~ Lien granted to or ~~enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely~~ held by the Administrative Agent ~~on behalf~~ upon any property covered by this Agreement or the other Loan Documents (i) upon termination of the ~~Secured Parties in accordance with the terms hereof or thereof,~~ Total Revolving Credit Commitment and payment and satisfaction of all Obligations; (ii) constituting property being sold or disposed of in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection compliance with the ~~management or release~~ provisions of ~~any Collateral or of the obligations of any Loan Party under~~ this ~~Agreement. Each Secured Party agrees that~~ Agreement (and the Administrative Agent may rely in ~~its sole discretion~~good faith conclusively on any certificate to such effect, ~~but is under no obligation to, credit bid~~ without further inquiry); or (iii) constituting property leased to any ~~part~~ of the ~~Secured Obligations~~ Borrowers or any of their subsidiaries under a lease which has expired or been terminated in a transaction permitted under this Agreement or is about to ~~purchase or retain or acquire any portion of the Collateral. The Administrative Agent shall be entitled to rely upon~~expire and which has not been, and ~~shall~~ is not ~~incur any liability for relying upon~~intended by such Borrower or such subsidiary to be, ~~any notice~~renewed or extended; PROVIDED, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) that it believes to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of CreditHOWEVER, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. 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 and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article 8 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 the Administrative Agent. The Secured Parties agree that x) the Administrative Agent shall not be ~~responsible~~ required to execute any release on terms which, in the Administrative Agent's opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of any Loan Party, in respect of), all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the property covered by this Agreement or the Loan Documents. With respect to perfecting Lenders' security interest in Collateral which, in accordance with Article 9 of the Uniform Commercial Code in any applicable jurisdiction, can be perfected only by possession, each Lender hereby appoints each other Lender for the purpose of perfecting such interest. Should any Lender (other than the Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the Administrative Agent, and, promptly upon the Administrative Agent's request, shall deliver such Collateral to the ~~Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such~~ Administrative Agent ~~acted with gross negligence~~ or willful misconduct in the selection of such sub-agent. The Administrative Agent may resign at any time by giving ten days’ written notice to the Lenders, the Issuing Banks and the Borrower; provided that if no successor agent is appointed in accordance with the ~~terms set forth below within~~ Administrative Agent's instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any Loan Document or to realize upon any Collateral for the Loans, it being understood and agreed that such ~~10-day period,~~ rights and remedies may be exercised only by the Administrative Agent~~’s resignation shall not be effective until~~ . In the ~~earlier to occur of (x) the date~~ event that a petition seeking relief under Title 11 of the ~~appointment of the successor agent~~ United States Code or ~~(y) the date that~~ any other Federal, state or foreign bankruptcy, insolvency, liquidation or similar law is ~~twenty (20) days after the last day of such 10-day period. If~~ filed by or against any Loan Party, the Administrative Agent is authorized to file a ~~Defaulting Lender or an Affiliate~~ proof of ~~a Defaulting Lender, either~~ claim on behalf of itself and the ~~Required~~ Lenders or in such proceeding for the ~~Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within~~ total amount of Obligations owed by such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day periodLoan Party. Upon receipt of any such notice of resignation or delivery of any such notice of removal, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld or delayed), to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with With respect to any ~~Borrower, Section 7.01(f) or (g), no consent~~ such proof of the Borrower shall be required. If no successor has been appointed as provided above and accepted such appointment within ten days after the retiring Administrative Agent gives notice of its resignation or claim which the Administrative Agent ~~receives notice~~ may file, each Lender acknowledges that without reliance on such proof of removal, then (a) in the case of a retirement, 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 meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each caseclaim, such ~~resignation or removal~~ Lender shall ~~nonetheless become effective in accordance with the provisos~~ make its own evaluation as to ~~the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent shall~~ whether an individual proof of claim must be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8. Upon the acceptance of its appointment as Administrative Agent ▇▇▇▇▇▇▇▇▇ as a successor Administrative Agent, the successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof). The fees payable by the Borrower to any successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative Agent. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties filed in respect of ~~any action taken or omitted~~ such Obligations owed to ~~be taken by any of them while~~ such Lender and, if so, take the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything steps necessary to ~~the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent~~prepare and timely file such individual claim. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender ~~or any of their Related Parties~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement and any other Loan Document to which such Lender is party. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the ~~Administrative Agent~~ Agents or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, the Administrative Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by such 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, on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank organized under the laws of the United States, or any State thereof, having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, such successor shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under each of the other Loan Documents. After any Administrative Agent's resignation hereunder, the provisions of this Article shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. The Lenders hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by the Administrative Agent pursuant to the provisions of this Agreement or any of the other Loan Documents unless it shall be requested in writing to do so by the Required Lenders. The Lenders further hereby acknowledge that neither of the Agents is acting as the fiduciary of, or the trustee for, any of the Lenders and except as expressly set forth herein, neither of the Agents shall have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to such Agents by or relating to the Borrowers or any of their respective subsidiaries.

Appears in 1 contract

Sources: Credit Agreement (Interdent Inc)

Agents. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably appoints ~~BofA (or any successor appointed pursuant hereto)~~ JPMorgan Chase Bank, N.A. as Administrative ~~Agent~~ Agent, Citibank, N.A. and Bank of America, N.A. as Co-Syndication Agents, and BNP Paribas and UBS Loan Finance LLC as Co-Documentation Agents and authorizes ~~the Administrative~~ each such Agent to take such actions on its ~~behalf, including execution of the other Loan Documents,~~ behalf and to exercise such powers as are delegated to ~~the Administrative~~ such Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. Any ~~Person~~ bank serving as ~~Administrative~~ an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not ~~the Administrative~~ an Agent, and ~~the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless~~ such ~~Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. 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 ~~any Loan Party~~ Borrower or any Subsidiary ~~of any Loan Party~~ or other Affiliate thereof as if it were not ~~the Administrative~~ an Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent Agents shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the ~~Administrative Agent~~ Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, has occurred and is ~~intended to create or reflect only an administrative relationship between independent contracting parties~~continuing, (b) ~~the Administrative~~ each Agent shall not have any duty to take any discretionary action or exercise any discretionary ~~power~~powers, except discretionary rights and powers ~~that are~~ expressly contemplated ~~by the Loan Documents and which the Administrative~~ hereby that such Agent is required to exercise in writing ~~as directed~~ by the Required ~~Lenders or Required Revolving~~ Lenders (or such other number or percentage of the Lenders as shall be necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.2); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth ~~in the Loan Documents~~herein, ~~the Administrative~~ each Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the~~ Borrower or any of its ~~Restricted~~ Subsidiaries that is communicated to or obtained by the ~~Person~~ bank serving as ~~Administrative~~ such Agent or any of its Affiliates in any capacity. ~~The Administrative~~ Each Agent shall not be liable ~~to the Lenders or any other Secured Party~~ for any action taken or not taken by it with the consent or at the request of the Required Lenders ~~or Required Revolving Lenders~~ (or such other number or percentage of the Lenders as ~~is necessary, or as the Administrative Agent believes in good faith~~ shall be ~~necessary,~~ necessary under the ~~relevant~~ circumstances as provided in Section ~~9.02~~10.2) or in the absence of its own gross negligence or willful misconduct~~, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein~~. ~~The Administrative~~ Each Agent shall ~~not~~ be deemed not to have knowledge of any ~~Default or Event of~~ Default unless and until written notice thereof is given to ~~the Administrative~~ such Agent by ~~the~~ Borrower or ~~any~~ a Lender, and ~~the Administrative~~ such Agent 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 hereunder or in connection ~~with any Loan Document~~herewith, (iii) the performance or observance of any ~~covenant~~of the covenants, ~~agreement~~ agreements or other ~~term~~ terms or ~~condition~~ conditions set forth ~~in any Loan Document or the occurrence of any Default or Event of 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 creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to such Agent. None of the ~~Administrative Agent or~~ Persons identified on the facing page of this Agreement as the “Co-Lead Arrangers and Joint Bookrunners” (~~vii) any property, book or record of any Loan Party or any Affiliate thereof. Each Secured Party acknowledges and agrees that~~ the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things“Arrangers”), the ~~upcoming lapse~~ Co-Documentation Agents or ~~expiration thereof. The Secured Parties agree that~~ the Administrative Agent shall not be liable to the Secured Parties for any action taken or not taken by any such service provider. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party Co-Syndication Agents shall have any ~~right individually to realize upon~~ right, power, obligation, liability, responsibility or duty under this Agreement or any other Loan Document other than, except in the case of the ~~Collateral or~~ Arrangers, those applicable to enforce the Loan Guaranty; it being understood that any realization upon the Collateral or enforcement on any Loan Guaranty against the Loan Parties pursuant hereto or pursuant to any Loan Document may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms hereof or thereof, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, all Lenders as agent for and representative of the Secured Parties, 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 sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to, credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateralsuch. The Administrative Agent and the other Agents shall be entitled to rely upon, 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) that~~ believed by it ~~believes~~ to be genuine and to have been ~~signed,~~ signed or sent ~~or otherwise authenticated~~ by the proper Person. The Administrative Agent and the other Agents also may rely upon any statement made to it orally or by telephone and believed by it to ~~have been~~ be made by the proper ~~Person~~ Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent and the other 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~~ Any Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itsuch Agent. ~~The Administrative~~ Any Agent and any such sub-agent may perform any and all ~~of their respective~~ its duties and exercise ~~their respective~~ its rights and powers through their respective Related Parties. The exculpatory provisions of ~~this Article 8~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the Administrative~~ such Agent and any such sub-~~agent~~ 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 ~~the Administrative~~ an Agent. ~~The Secured Parties agree that~~ Subject to the appointment and acceptance of a successor Administrative Agent ~~shall not be responsible to~~ as provided in this paragraph, the Secured Parties for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. The Administrative Agent may resign at any time by ~~giving ten days’ written notice to~~ notifying the ~~Lenders, the Issuing Banks~~ Lenders and ~~the~~ Borrower; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s resignation shall not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. If the Administrative Agent is a Defaulting Lender or an Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon ten days’ notice, remove the Administrative Agent; provided that if no successor agent is appointed in accordance with the terms set forth below within such 10-day period, the Administrative Agent’s removal shall, at the option of the Borrower, not be effective until the earlier to occur of (x) the date of the appointment of the successor agent or (y) the date that is twenty (20) days after the last day of such 10-day period. Upon ~~receipt of~~ any such ~~notice of resignation or delivery of any such notice of removal~~resignation, ~~the Required Lenders~~ Borrower shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld or delayed)~~Required Lenders, to appoint a successor Administrative Agent which shall be a commercial bank or trust company with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000; provided that during the existence of an Event of Default under Section 7.01(a) or, with respect to any Borrower, Section 7.01(f) or (g), no consent one of the ~~Borrower shall be required~~Lenders as a successor. If no successor ~~has~~ shall have been so appointed ~~as provided above~~ by Borrower and shall have accepted such appointment within ~~ten~~ 30 days after the retiring Administrative Agent gives notice of its ~~resignation or the Administrative Agent receives notice of removal~~resignation, then ~~(a) in the case of a retirement,~~ the retiring 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 meeting the qualifications set forth above (including, for the avoidance of doubt, the consent of the Borrower) or (b) in the case of a removal, the Borrower may, after consulting with the Required ▇▇▇▇▇▇▇, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that (x) in the case of a retirement, if the Administrative Agent notifies the Borrower, the Lenders and the Issuing Banks that no qualifying Person has accepted such appointment or (y) in the case of a removal, the Borrower notifies the Required Lenders that no qualifying Person has accepted such appointment, then, in each case, such resignation or removal shall nonetheless become effective in accordance with the provisos to the first two sentences in this paragraph and (i) the retiring or removed Administrative Agent which shall be ~~discharged from its duties and obligations hereunder and under the other Loan Documents (except that~~ a bank with an office in ~~the case~~ New York, New York, or an Affiliate of any collateral security held by the Administrative Agent in its capacity as collateral agent for the Secured Parties for purposes of maintaining the perfection of the Lien on the Collateral securing the Secured Obligations, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) all payments, communications and determinations required to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Bank directly (and each Lender and each Issuing Bank will cooperate with the Borrower to enable the Borrower to take such actions), until such time as the Required Lenders or the Borrower, as applicable, appoint a successor Administrative Agent, as provided above in this Article 8bank. Upon the acceptance of its appointment as Administrative Agent ~~▇▇▇▇▇▇▇▇▇ as~~ hereunder by a successor, such successor ~~Administrative Agent, the successor Administrative Agent~~ shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring ~~or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring~~ Administrative Agent), and the retiring ~~or removed~~ Administrative Agent shall be discharged from its duties and obligations ~~hereunder (other than its obligations under Section 9.13 hereof)~~hereunder. The fees payable by ~~the~~ Borrower to ~~any~~ a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the~~ Borrower and such ~~successor Administrative Agent~~successor. After the Administrative Agent’s resignation ~~or removal~~ hereunder, the provisions of this Article and Section ~~9.03~~ 10.3 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 ~~action~~ actions taken or omitted to be taken by any of them while ~~the relevant Person~~ it was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent). Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender ~~or any of their Related Parties~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any ~~of their respective~~ document furnished hereunder or thereunder.

Appears in 1 contract

Common use of Agents Clause in Contracts