Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 5 contracts

Sources: Credit Agreement (Columbia Funds Variable Series Trust II), Credit Agreement (Columbia Funds Variable Series Trust II), Credit Agreement (Columbia Acorn Trust)

Authorization and Action. (a) Each Lender , on behalf of itself and any of its Affiliates that are Secured Parties and each Issuing Bank hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent and collateral agent under the Loan ~~Documents,~~ Documents and each Lender and each Issuing Bank authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than within the United States, each Lender and each Issuing Bank hereby grants to the Administrative Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such ▇▇▇▇▇▇’s or such Issuing Bank’s behalf. Without limiting the foregoing, each Lender and each Issuing Bank hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each ~~Lender~~Lender and each Issuing Bank; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders and an Issuing Banks with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ the Borrower, any ~~Subsidiary~~ other Loan Party, any subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing Banks (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature~~. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower~~. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any ~~Lender~~ Lender, any Issuing Bank, any other Secured Party or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article VIII shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No The Arranger shall not have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any ~~Borrower~~ Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the ~~Loans~~ Loans, LC Disbursements and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the ~~Lenders~~ Lenders, the Issuing Banks and the Administrative Agent (including any claim under Sections ~~2.3~~2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the ~~same~~same in accordance with the Loan Documents; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each ~~Lender~~ Lender, each Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the any Issuing Banks or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or any Issuing Bank in any such proceeding. (g) The provisions of this ~~Section 8~~ Article VIII are solely for the benefit of the Administrative ~~Agent~~ Agent, the Lenders and the ~~Lenders~~Issuing Banks, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article VIII, none of the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed to the provisions of this Article VIII.

Appears in 5 contracts

Sources: Credit Agreement (Cava Group, Inc.), Credit Agreement (Cava Group, Inc.), Credit Agreement (Cava Group, Inc.)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.~~ Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 8 shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 4 contracts

Sources: Credit Agreement (Wanger Advisors Trust), Credit Agreement (Columbia Acorn Trust), Credit Agreement (Columbia Funds Series Trust I)

Authorization and Action. Each of the Lenders (~~a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading~~ for purposes of this ~~Agreement~~ Article, references to the Lenders shall also mean the LC Issuing Bank) hereby appoints and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to the ~~Administrative~~ Agent ~~under such agreements and to exercise~~ by the terms hereof, together with such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in the~~ by this Agreement or any other Loan ~~Documents~~ Document (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Borrowings), the ~~Administrative~~ Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the ~~Required Lenders (or such other number or percentage of the Lenders as shall be necessary~~Majority Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Notes (if any); provided, however, that the ~~Administrative~~ Agent shall not be required to take any action ~~that (i)~~ which, in its opinion or the ~~Administrative~~ opinion of its counsel, may expose the Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to this Agreement or ~~any other Loan Document or~~ applicable law~~, including any action that may be in violation~~ . The Agent agrees to give to each Lender prompt notice of each notice given to it by the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior Borrower pursuant to the ~~exercise~~ terms of ~~any such instructed action and may refrain from acting until such clarification or direction has been provided~~this Agreement. ~~Except as expressly set forth in the Loan Documents, the Administrative~~ The Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have ~~assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and~~ exercised reasonable care in the ~~other Loan Documents, regardless~~ administration and enforcement of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan ~~Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent~~ Documents if it undertakes such administration and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 8 shall apply enforcement in a manner substantially equal to ~~any such sub-agent and~~ that which Wachovia accords credit facilities similar to the ~~Related Parties of~~ credit facility hereunder for which it is the Administrative Agent and any such sub-agent and shall apply to their respective activities pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5)sole lender. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the ~~Administrative~~ Agent and the ~~Lenders~~Lenders except as otherwise expressly provided herein, ~~and, except solely to~~ and the ~~extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates,~~ Borrower shall have ~~any~~ no rights as a third party beneficiary ~~under~~ of any of such provisions.

Appears in 3 contracts

Sources: Credit Agreement (Interstate Power & Light Co), Credit Agreement (Interstate Power & Light Co), Credit Agreement (Interstate Power & Light Co)

Appears in 3 contracts

Sources: Revolving Credit Agreement (Felcor/Lax Holdings Lp), Revolving Credit Agreement (Felcor Suite Hotels Inc), Loan Agreement (Felcor Lodging Trust Inc)

Authorization and Action. ~~(a)~~ Each Lender ~~hereby irrevocably appoints the entity named~~ Party (in its capacity as ~~Administrative Agent in the heading~~ a Lender and on behalf of ~~this Agreement~~ itself and its ~~successors~~ Affiliates as potential Hedge Banks) hereby appoints and ~~assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lender Parties and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action that ~~(i)~~ exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ applicable law, including without limitation, for the avoidance of doubt, any action that may be in violation of the automatic stay under any ~~requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors~~ Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any ~~requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the~~ Debtor Relief Law. The Administrative Agent ~~may seek clarification or direction from~~ agrees to give to each Lender Party prompt notice of each notice given to it by the ~~Required Lenders prior~~ Borrower pursuant to the ~~exercise~~ terms of this Agreement. Notwithstanding anything to the contrary in any Loan Document, no Person identified as a co-syndication agent, documentation agent, senior manager, co-lead arranger or book-running manager, in such ~~instructed action and may refrain from acting until such clarification~~ Person’s capacity as such, shall have any obligations or ~~direction has been provided. Except as expressly set forth in the~~ duties to any Loan ~~Documents~~Party, the Administrative Agent ~~shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any Subsidiary~~ or any ~~Affiliate of~~ other Lender Party under any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such ~~funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other~~ Loan Documents. In its capacity as the Lender Parties’ contractual representative, the Administrative Agent is ~~acting solely on behalf~~ a “representative” of the ~~Lenders (except in limited circumstances expressly provided for herein relating to~~ Lender Parties as used within the ~~maintenance~~ meaning of “Secured Party” under Section 9-102 of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own accountUniform Commercial Code. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 3 contracts

Sources: Credit Agreement (Summit Hotel Properties, Inc.), Credit Agreement (Summit Hotel Properties, Inc.), Credit Agreement (Summit Hotel Properties, Inc.)

Authorization and Action. ~~(a)~~ Each ~~Lender~~ Bank hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes ~~the~~ Administrative Agent to take such ~~actions~~ action as ~~agent~~ contractual representative on ~~its~~ such Bank’s behalf and to exercise such powers under this Agreement and the other Loan Documents as are specifically delegated to ~~the~~ Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers as are reasonably incidental thereto. ~~Without limiting~~ Not in limitation of the foregoing, each ~~Lender hereby~~ Bank authorizes ~~the~~ and directs Administrative Agent to ~~execute and deliver, and to perform its obligations under, each of~~ enter into the Loan Documents ~~to which~~ for the benefit of the Banks. Each Bank hereby agrees that, except as otherwise set forth herein, any action taken by Administrative Agent ~~is a party~~in accordance with the provisions of this Agreement or the Loan Documents, to and the exercise ~~all rights, powers and remedies that the~~ by Administrative Agent ~~may have under~~ of the powers set forth herein or therein, together with such ~~Loan Documents.~~ other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Banks. Nothing herein (bincluding the use of the term “Administrative Agent”) shall be construed to deem Administrative Agent a trustee or fiduciary for any Bank nor to impose on Administrative Agent duties or obligations other than those expressly provided for herein. As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Loan), ~~the~~ Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders~~ Banks (~~or such~~ if explicitly required under any other ~~number or percentage~~ provision of ~~the Lenders as shall be necessary, pursuant to the terms in the Loan Documents~~this Agreement), ~~and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all of the Banks and all holders of the Loan; provided, however, ~~that~~ that, notwithstanding anything in this Agreement to the contrary, Administrative Agent shall not be required to take any action that ~~(i) the~~ exposes Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or any other Loan Document or ~~applicable law, including any action that~~ Applicable Laws. Borrower may ~~be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency~~ rely on written amendments or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained waivers executed by ~~the Person serving as~~ Administrative Agent or ~~any of its Affiliates in any capacity. Nothing in this Agreement shall require the~~ acts taken by Administrative Agent ~~to expend or risk its own funds or otherwise incur any financial liability in~~ as being authorized by the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan DocumentsBanks, ~~the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating~~ as applicable, to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the extent Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees advise Borrower that it ~~will~~ has not ~~assert any claim against~~ obtained such authorization from the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own accountBanks. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 3 contracts

Sources: Syndicated Term Loan Agreement (Strategic Storage Trust VI, Inc.), Syndicated Term Loan Agreement (Strategic Storage Trust VI, Inc.), Syndicated Term Loan Agreement (Strategic Storage Trust VI, Inc.)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.~~ Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 8 shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~▇▇▇▇▇▇▇ ▇, ~~none~~ ▇▇▇▇ of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 3 contracts

Sources: Credit Agreement (Wanger Advisors Trust), Credit Agreement (Columbia Funds Series Trust II), Credit Agreement (Columbia Funds Series Trust I)

Authorization and Action. ~~(a)~~ Each Lender hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading~~ and authorizes Issuing Bank to issue Letters of Credit pursuant to this Agreement ~~and its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf~~ and to exercise such powers under this Agreement and the other Loan Documents as are specifically delegated to Issuing Bank by the ~~Administrative Agent under such agreements~~ terms hereof and ~~to exercise~~ thereof, together with such powers as are reasonably incidental thereto. ~~Without limiting the foregoing, each~~ Nothing herein shall be construed to deem Issuing Bank a trustee or fiduciary for any Lender ~~hereby authorizes the Administrative Agent~~ nor to ~~execute and deliver, and to perform its~~ impose on Issuing Bank duties or obligations ~~under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b)~~ other than those expressly provided for herein. As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of any of the Obligations), ~~the Administrative Agent~~ Issuing Bank shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required Lenders (or ~~such~~ all Lenders if explicitly required under any other ~~number or percentage~~ provision of ~~the Lenders as shall be necessary, pursuant to the terms in the Loan Documents~~this Agreement), ~~and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of any of the Obligations; provided, however, ~~that~~ that, notwithstanding anything in this Agreement to the ~~Administrative Agent~~ contrary, Issuing Bank shall not be required to take any action that ~~(i) the Administrative Agent in good faith believes~~ exposes it Issuing Bank to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to this Agreement or any other Loan ~~Document or applicable law, including any action that may be~~ Document. Not in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality limitation of the foregoing~~: (i) the Administrative Agent does not assume and~~ , Issuing Bank shall not ~~be deemed to~~ exercise any right or remedy it may have ~~assumed~~ under any ~~obligation or duty or any other relationship as~~ Loan Document upon the ~~agent, fiduciary or trustee~~ occurrence of ~~or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether~~ a Default or an Event of Default ~~has occurred and is continuing (and it is understood and agreed that~~ unless the ~~use of~~ Required Lenders have so directed the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable lawAgent, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have ~~made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for~~ so directed the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the LendersIssuing Bank, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize exercise such right or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedingremedy. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 3 contracts

Sources: Revolving Credit Agreement (MCG Capital Corp), Revolving Credit Agreement (MCG Capital Corp), Revolving Credit Agreement (MCG Capital Corp)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that ~~(i)~~ the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification ~~and is exculpated in a manner~~ satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtorsaction; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature~~. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower~~. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby~~; and~~; (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No The Arranger shall have no obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such ~~persons~~ Persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to ~~any~~ the Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any other obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative ~~Agent and~~ Agent, the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 3 contracts

Sources: Credit Agreement (Northwest Natural Holding Co), Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that ~~(i)~~ the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification ~~and is exculpated in a manner~~ satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtorsaction; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any Borrower~~the Guarantor, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature~~. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower~~. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby~~; and~~; (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No The Arranger shall have no obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such ~~persons~~ Persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to ~~any~~ the Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any other obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative ~~Agent and~~ Agent, the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Guarantor or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 3 contracts

Sources: Credit Agreement (Northwest Natural Holding Co), Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i1) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii2) is contrary to this Agreement or any other Loan Document or ~~applicable law~~Applicable Law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative ~~Agent~~ Agent, Syndication Agents and Documentation Agents are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i1) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any ~~Lender or holder of any other obligation~~ Lender, other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any ~~applicable law~~Applicable Law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby; and (ii2) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No None of any Syndication Agent, any Documentation Agent or any Lead Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to the Borrower or any ~~Borrower~~ Subsidiary Guarantor under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i1) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.09, ~~2.7~~ 2.10, 2.12, 2.13 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii2) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each ~~Lender~~ Lender, to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 3 contracts

Sources: 364 Day Revolving Credit Agreement (GE HealthCare Technologies Inc.), Credit Agreement (GE HealthCare Technologies Inc.), 364 Day Revolving Credit Agreement (GE HealthCare Technologies Inc.)

Authorization and Action. ~~(a)~~ Each Lender (in its capacities as a Lender and Issuing Bank, as applicable) hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement ~~and the other Loan Documents~~ as are delegated to the ~~Administrative~~ Agent ~~under such agreements and to exercise~~ by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in the other Loan Documents~~ by this Agreement (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Revolving Credit Notes), the ~~Administrative~~ Agent shall not be required to exercise any discretion (other than such discretion as is delegated to the Agent under the terms of this Agreement, together with such powers as are reasonably incidental thereto) or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, ~~pursuant to~~ or as the ~~terms~~ Agent shall believe in good faith shall be necessary, under the ~~Loan Documents~~circumstances), ~~and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Revolving Credit Notes; provided, however, that the ~~Administrative~~ Agent shall not be required to take any action that, in its opinion or in the opinion of counsel to the Agent, exposes the Agent or its Affiliates and their officers, directors, employees, agents and advisors to personal liability or that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or ~~any other Loan Document or~~ applicable law~~, including any action that may be in violation~~ . The Agent agrees to give to each Lender prompt notice of each notice given to it by the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior Borrower pursuant to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions terms of this ~~Section 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 pursuant to this~~ Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the ~~Administrative Agent and~~ Agent, the Lenders, ~~and~~and the Issuing Banks, ~~except solely to~~ and the ~~extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates,~~ Borrower shall not have ~~any~~ rights as a third party beneficiary ~~under~~ of any of such provisions.

Appears in 2 contracts

Sources: Credit Agreement (Travelers Companies, Inc.), Credit Agreement (Travelers Companies, Inc.)

Authorization and Action. ~~(a)~~ Each Lender (in its capacities as a Lender and Issuing Bank (as applicable)) hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement ~~and the other Loan Documents~~ as are delegated to the ~~Administrative~~ Agent ~~under such agreements and to exercise~~ by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in the other Loan Documents~~ by this Agreement (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), the ~~Administrative~~ Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Notes; ~~provided~~PROVIDED, ~~however~~HOWEVER, that the ~~Administrative~~ Agent shall not be required to take any action that ~~(i)~~ exposes the ~~Administrative~~ Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or applicable law. The Agent shall be fully justified in failing or refusing to take any action under this Agreement and the other Loan ~~Document or applicable law, including~~ Documents unless it shall first be indemnified to its satisfaction by the Lenders against any ~~action that~~ and all liability and expense which may be ~~in violation~~ incurred by it by reason of taking or continuing to take any such action except for its own gross negligence or willful misconduct. The Agent agrees to give to each Lender prompt notice of each notice given to it by the ~~automatic stay under any requirement~~ Borrower pursuant to the terms of ~~law relating to bankruptcy~~this Agreement, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, provided that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan Documents, the Administrative Agent shall ~~not~~ have ~~any duty to disclose, and shall not be liable~~ no liability for the failure ~~to disclose, any information relating to any Borrower, any Subsidiary~~ or ~~any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative~~ delay in giving such notices. The Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of may execute any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan ~~Document~~ Documents by or through ~~any one~~ agents or ~~more sub~~attorneys-~~agents appointed by the Administrative Agent. The Administrative Agent~~ in-fact and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled ~~and empowered (but~~ to advice of counsel concerning all matters pertaining to such duties. The Agent shall not ~~obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim~~ be responsible for the ~~whole amount~~ negligence or misconduct of any agent or attorneys-in-fact selected by the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the ~~event that the Administrative Agent shall consent to the making~~ absence of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize gross negligence or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedingwillful misconduct. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 2 contracts

Sources: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the ~~Loan Documents,~~ Credit Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other ~~Loan~~ Credit Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the ~~Loan~~ Credit Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such ~~Loan~~ Credit Documents. (b) As to any matters not expressly provided for herein and in the other ~~Loan~~ Credit Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the ~~Loan~~ Credit Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other ~~Loan~~ Credit Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; ~~provided,~~ provided further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the ~~Loan~~ Credit 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 ~~any~~ the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative ~~Agent~~ Agent, or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other ~~Loan~~ Credit Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature~~. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower~~. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other ~~Loan~~ Credit Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other ~~Loan~~ Credit Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby; and (ii) nothing in this Agreement or any ~~Loan~~ Credit Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other ~~Loan~~ Credit Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) ~~No Arranger~~ None of the Syndication Agent or the Lead Arrangers shall have obligations or duties whatsoever in such capacity under this Agreement or any other ~~Loan~~ Credit Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to ~~any~~ the Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any ~~Loan~~ Loan, any Reimbursement Obligation or other Obligation of the Borrower under the Credit Documents shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.13, ~~2.7~~ 2.14, 2.16, 2.18 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative ~~Agent,~~ Agent under the ~~Loan~~ Credit Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations of the Borrower under the Credit Documents or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral provided under the Credit Documents, to have agreed to the provisions of this Article.

Appears in 2 contracts

Sources: Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.)

Authorization and Action. (a) Each ~~Lender~~ Bank hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents, and each ~~Lender~~ Bank authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each ~~Lender~~ Bank hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required ~~Lenders~~ Banks (or such other number or percentage of the ~~Lenders~~ Banks as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each ~~Lender~~Bank; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the ~~Lenders~~ Banks with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting ~~Lender~~ Bank in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required ~~Lenders~~ Banks prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the ~~Lenders~~ Banks (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the ~~Borrower~~Borrowers. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any ~~Lender~~ Bank or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each ~~Lender~~ Bank agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any ~~Lender~~ Bank for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related ~~Parties~~Persons. The exculpatory provisions of this ~~Section 8~~ Article VII shall apply to any such sub-agent and to the Related ~~Parties~~ Persons of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities to the extent provided for hereunder. (f) In To the extent permitted by applicable law, in case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the ~~Lenders~~ Banks and the Administrative Agent (including any claim under Sections ~~2.3~~2.8, ~~2.7~~ 2.9, 2.12, 2.15 and ~~2.10~~8.3) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each ~~Lender~~ Bank to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the ~~Lenders~~Banks, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~8.3). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any ~~Lender~~ Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any ~~Lender~~ Bank or to authorize the Administrative Agent to vote in respect of the claim of any ~~Lender~~ Bank in any such proceeding. (g) The provisions of this ~~Section 8~~ Article VII are solely for the benefit of the Administrative Agent and the ~~Lenders~~Banks, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article VII, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 2 contracts

Sources: Credit Agreement (BlackRock ETF Trust), Credit Agreement (BlackRock Series Fund, Inc.)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the ~~Loan Documents,~~ Credit Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other ~~Loan~~ Credit Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the ~~Loan~~ Credit Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such ~~Loan~~ Credit Documents. (b) As to any matters not expressly provided for herein and in the other ~~Loan~~ Credit Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the ~~Loan~~ Credit Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other ~~Loan~~ Credit Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; ~~provided,~~ provided further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the ~~Loan~~ Credit 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 ~~any~~ the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative ~~Agent~~ Agent, or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other ~~Loan~~ Credit Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature~~. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower~~. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other ~~Loan~~ Credit Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other ~~Loan~~ Credit Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby; and (ii) nothing in this Agreement or any ~~Loan~~ Credit Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other ~~Loan~~ Credit Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-~~sub- agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) ~~No Arranger~~ None of the Syndication Agent or the Lead Arrangers shall have obligations or duties whatsoever in such capacity under this Agreement or any other ~~Loan~~ Credit Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to ~~any~~ the Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any ~~Loan~~ Loan, any Reimbursement Obligation or other Obligation of the Borrower under the Credit Documents shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.13, ~~2.7~~ 2.14, 2.16, 2.18 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative ~~Agent,~~ Agent under the ~~Loan~~ Credit Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations of the Borrower under the Credit Documents or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral provided under the Credit Documents, to have agreed to the provisions of this Article.

Appears in 2 contracts

Sources: Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.)

Authorization and Action. ~~(a)~~ Each Lender ~~hereby irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes ------------------------ the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (including enforcement or ~~collection~~collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected and indemnified in so acting or refraining from acting) upon the ~~written~~ instructions of the Required Lenders or, if applicable, the Required Secured Creditors (~~or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents~~unless otherwise provided herein), ~~and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders; ~~provided, however,~~ provided that the Administrative Agent shall not be required to take any action that ~~(i)~~ exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the . The Administrative Agent ~~may seek clarification or direction from~~ will give to each Lender prompt notice of each notice given to it by the ~~Required Lenders prior~~ Borrower pursuant to the ~~exercise~~ terms of this Agreement. Notwithstanding any ~~such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth~~ provision to the contrary elsewhere in ~~the Loan Documents~~this Agreement, the Administrative Agent shall not have any ~~duty to disclose, and shall not be liable for the failure to disclose, any information relating~~ duties or responsibilities to any ~~Borrower~~Lender, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as those expressly set forth ~~herein and in the other Loan Documents~~herein, ~~regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (~~or any ~~similar term) herein or in~~ fiduciary relationship with any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable lawLender, and ~~that such term is used as a matter of market custom and is intended~~ no implied covenants, functions, responsibilities, duties, obligations or liabilities to ~~create or reflect only an administrative relationship between contracting parties); additionally, each~~ any Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in shall be read into this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by otherwise exist against the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 8 shall apply Borrower agrees to ~~any such sub-agent and to the Related Parties of~~ pay the Administrative Agent ~~and any~~ such sub-agent and shall apply to their respective activities pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability compensation for services rendered hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be ~~necessary or advisable in order to have~~ separately agreed between the ~~claims of the Lenders~~ Borrower and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the ~~event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative~~ Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding's Fee Letter. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 2 contracts

Sources: Loan Agreement (Omnipoint Corp \De\), Loan Agreement (Omnipoint Corp \De\)

Authorization and Action. Each Bank hereby irrevocably appoints and authorizes (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender authorizes the Administrative Agent to ~~take such actions~~ act as its agent ~~on its behalf~~ hereunder and ~~to exercise~~ under any other Loan Document with such powers ~~under this Agreement and the other Loan Documents~~ as are specifically delegated to the Administrative Agent by the terms of this Agreement and any other Loan Document together with such other powers as are reasonably incidental thereto, (b) the Documentation Agent to act as its agent hereunder and under any other Loan Document with such ~~agreements~~ powers as are specifically delegated to the Documentation Agent by the terms of this Agreement and any other Loan Document together with such other powers as are reasonably incidental thereto, and (c) the Syndication Agents to ~~exercise~~ act as its agents hereunder and under any other Loan Document with such powers as are specifically delegated to the Syndication Agents by the terms of this Agreement and any other Loan Document together with such other powers as are reasonably incidental thereto. ~~Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each~~ The duties of the ~~Loan Documents to which~~ Agents and the ~~Administrative Agent is~~ Lead Arranger shall be mechanical and administrative in nature and none of the Agents or the Lead Arranger shall by reason of this Agreement be a ~~party, to exercise all rights, powers~~ trustee or fiduciary for any Bank. The Agents and ~~remedies that~~ the ~~Administrative Agent may~~ Lead Arranger shall have ~~under such Loan Documents. (b)~~ no duties or responsibilities except those expressly set forth herein. As to any matters not expressly provided for ~~herein and in the other Loan Documents~~ by this Agreement (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), none of the ~~Administrative Agent~~ Agents or the Lead Arranger shall ~~not~~ be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or so refraining from acting) upon the ~~written~~ instructions of the ~~Required Lenders (or such other number or percentage of the Lenders as shall be necessary~~Requisite Banks, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Banks and all holders of Notes; provided, however, that none of the ~~Administrative Agent~~ Agents or the Lead Arranger shall ~~not~~ be required to take any action ~~that (i)~~ which exposes the ~~Administrative Agent in good faith believes exposes it~~ Agents or the Lead Arranger to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.or

Appears in 2 contracts

Sources: Revolving Credit Agreement (Southern States Capital Trust I), Revolving Credit Agreement (Southern States Cooperative Inc)

Authorization and Action. ~~(a)~~ Each ~~Lender hereby irrevocably~~ Bank appoints and designates AgStar Financial Services, PCA as Agent hereunder. The Agent may, and each Bank authorizes Agent to, enter into all Loan Documents to which Agent is intended to be a party and accept all Security Interest, for Agent's benefit and the ~~entity named as Administrative~~ pro rata benefit of Banks. Each Bank agrees that any action taken by Agent in accordance with the ~~heading~~ provisions of ~~this Agreement and its successors and assigns to serve as the administrative agent under~~ the Loan Documents, and ~~each Lender~~ the exercise by Agent of any rights or remedies set forth therein, together with all other powers reasonably incidental thereto, shall be authorized by and binding upon all Banks. Each Bank hereby further appoints and authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and on behalf of each of its Affiliates who are owed Loan Obligations (each such Affiliate by acceptance of the benefits of the Loan Documents hereby ratifying such appointment) and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the ~~Administrative~~ Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in~~ by this Agreement or the other Loan Documents (including enforcement or ~~collection~~collection of the Notes), the ~~Administrative~~ Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each LenderBanks; provided, however, that the ~~Administrative~~ Agent shall not be required to take any action ~~that (i)~~ which exposes the ~~Administrative~~ Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to this Agreement or ~~any other Loan Document or~~ applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 2 contracts

Sources: Credit Agreement (Highwater Ethanol LLC), Credit Agreement (Green Plains Renewable Energy, Inc.)

Authorization and Action. (a) Each Lender hereby irrevocably appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the ~~Administrative~~ Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the obligations of the Company or any Guarantor), ~~the Administrative~~ no Agent shall ~~not~~ be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each~~ all Lenders, and all holders of Notes, and the Agent agrees to request from the Company any information that is reasonably requested by any Lender; provided, however, that ~~the Administrative~~ no Agent shall ~~not~~ be required to take any action that ~~(i)~~ exposes the ~~Administrative~~ Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ applicable law~~, including any action that may be in violation of~~ . (b) The Agent and/or the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Collateral Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of execute any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall ~~incur no liability hereunder~~ be entitled to advice of counsel and other consultants or ~~thereunder in~~ experts concerning all matters pertaining to such ~~capacity, but all such persons shall have the benefit of the indemnities provided for hereunder~~duties. (fc) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims Each of the Lenders hereby appoints and authorizes the ~~Administrative~~ Collateral Agent ~~(including any claim under Sections 2.3, 2.7 and 2.10) allowed in~~ to take such ~~judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable~~ action as collateral agent on ~~any such claims~~ its behalf and to ~~distribute~~ exercise such powers under the ~~same;~~ Security Agreement A and ~~any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments~~ Security Agreement B as are specifically delegated to the ~~Administrative~~ Collateral Agent ~~and, in~~ by the ~~event that the Administrative Agent shall consent to the making~~ terms of such ~~payments directly to the Lenders~~Loan Documents, ~~to pay to the Administrative Agent any amount due to it, in its capacity~~ together with such other powers as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedingare reasonably incidental thereto. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 2 contracts

Sources: Term Loan Agreement (Whole Foods Market Inc), Term Loan Agreement (Whole Foods Market Inc)

Authorization and Action. (a) Each ~~Lender~~ Bank hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents, and each ~~Lender~~ Bank authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each ~~Lender~~ Bank hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required ~~Lenders~~ Banks (or such other number or percentage of the ~~Lenders~~ Banks as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each ~~Lender~~Bank; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the ~~Lenders~~ Banks with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting ~~Lender~~ Bank in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required ~~Lenders~~ Banks prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the ~~Lenders~~ Banks (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature~~. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower~~. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any ~~Lender~~ Bank or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each ~~Lender~~ Bank agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any ~~Lender~~ Bank for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related ~~Parties~~Persons. The exculpatory provisions of this ~~Section 8~~ Article VII shall apply to any such sub-agent and to the Related ~~Parties~~ Persons of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities to the extent provided for hereunder. (f) In To the extent permitted by applicable law, in case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the ~~Lenders~~ Banks and the Administrative Agent (including any claim under Sections ~~2.3~~2.8, ~~2.7~~ 2.9, 2.12 and ~~2.10~~2.15) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each ~~Lender~~ Bank to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the ~~Lenders~~Banks, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~8.3). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any ~~Lender~~ Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any ~~Lender~~ Bank or to authorize the Administrative Agent to vote in respect of the claim of any ~~Lender~~ Bank in any such proceeding. (g) The provisions of this ~~Section 8~~ Article VII are solely for the benefit of the Administrative Agent and the ~~Lenders~~Banks, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article VII, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 2 contracts

Sources: Credit Agreement (BlackRock Series Fund II, Inc.), Credit Agreement (BlackRock Series Fund II, Inc.)

Authorization and Action. ~~(a)~~ Each Lender ~~hereby irrevocably appoints the entity named~~ Party (in its capacity as ~~Administrative Agent in the heading~~ a Lender and on behalf of ~~this Agreement~~ itself and its ~~successors~~ Affiliates as potential Hedge Banks) hereby appoints and ~~assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lender Parties and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action that ~~(i)~~ exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ applicable law, including without limitation, for the avoidance of doubt, any action that may be in violation of the automatic stay under any ~~requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors~~ Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any ~~requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the~~ Debtor Relief Law. The Administrative Agent ~~may seek clarification or direction from~~ agrees to give to each Lender Party prompt notice of each notice given to it by the ~~Required Lenders prior~~ Borrower pursuant to the ~~exercise~~ terms of this Agreement. Notwithstanding anything to the contrary in any Loan Document, no Person identified as a joint-syndication agent, documentation agent, senior manager, joint-lead arranger or book-running manager, in such ~~instructed action and may refrain from acting until such clarification~~ Person’s capacity as such, shall have any obligations or ~~direction has been provided. Except as expressly set forth in the~~ duties to any Loan ~~Documents~~Party, the Administrative Agent ~~shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any Subsidiary~~ or any ~~Affiliate of~~ other Lender Party under any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such ~~funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other~~ Loan Documents. In its capacity as the Lender Parties’ contractual representative, the Administrative Agent is ~~acting solely on behalf~~ a “representative” of the ~~Lenders (except in limited circumstances expressly provided for herein relating to~~ Lender Parties as used within the ~~maintenance~~ meaning of “Secured Party” under Section 9-102 of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own accountUniform Commercial Code. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 2 contracts

Sources: Credit Agreement (Summit Hotel Properties, Inc.), Credit Agreement (Summit Hotel Properties, Inc.)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent and collateral agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby; (ii) where the Administrative Agent is required or deemed to act as a trustee in respect of any Collateral over which a security interest has been created pursuant to a Loan Document expressed to be governed by the laws of the United States, or is required or deemed to hold any Collateral “on trust” pursuant to the foregoing, the obligations and liabilities of the Administrative Agent to the Secured Parties in its capacity as trustee shall be excluded to the fullest extent permitted by applicable law; and (iiiii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No None of any Co-Documentation Agent, Co-Syndication Agent or any Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any ~~Borrower~~ Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.08, ~~2.7~~ 3.01, 3.03 and ~~2.10~~11.04) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; ; (g) and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the ~~Lenders~~Lenders or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~11.04). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any ~~Lender~~ Lender, any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (gh) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative ~~Agent and~~ Agent, the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the guarantees.

Appears in 2 contracts

Sources: Amendment No. 1 to Credit Agreement (Caci International Inc /De/), Credit Agreement (Caci International Inc /De/)

Authorization and Action. ~~(a)~~ Each Lender (in its capacities as a Lender and Issuing Bank, as applicable) hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement ~~and the other Loan Documents~~ as are delegated to the ~~Administrative~~ Agent ~~under such agreements and to exercise~~ by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in the other Loan Documents~~ by this Agreement (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Revolving Credit Notes), the ~~Administrative~~ Agent shall not be required to exercise any discretion (other than such discretion as is delegated to the Agent under the terms of this Agreement, together with such powers as are reasonably incidental thereto) or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, ~~pursuant to~~ or as the ~~terms~~ Agent shall believe in good faith shall be necessary, under the ~~Loan Documents~~circumstances), ~~and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Revolving Credit Notes; provided, however, that the ~~Administrative~~ Agent shall not be required to take any action that, in its opinion or in the opinion of counsel to the Agent, exposes the Agent or its Affiliates and their officers, directors, employees, agents and advisors to personal liability or that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or ~~any other Loan Document or~~ applicable law~~, including any action that may be in violation~~ . The Agent agrees to give to each Lender prompt notice of each notice given to it by the Borrower pursuant to the terms of this Agreement. The provisions of this Article are solely for the benefit of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan DocumentsAgent, the ~~Administrative Agent~~ Lenders, and the Issuing Banks, and the Borrower shall not have ~~any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any Subsidiary or any Affiliate~~ rights as a third party beneficiary of any of ~~the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity~~such provisions. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it It is understood and agreed that the use of the term “agent” herein (or any other similar term) ~~herein or in any other Loan Document~~ with reference to the ~~Administrative~~ Agent is not intended to connote any fiduciary ~~duty~~ or other implied (or express) obligations arising under agency doctrine of any applicable law~~, and that~~ . Instead such term is used as a matter of market ~~custom~~ custom, and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 2 contracts

Sources: Credit Agreement (Travelers Companies, Inc.), Credit Agreement (Travelers Companies, Inc.)

Authorization and Action. (a) Each ~~Lender~~ of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such actions ~~as agent~~ on its behalf and to exercise such powers ~~under this Agreement and the other Loan Documents~~ as are delegated to the Administrative Agent ~~under~~ by the terms of the Loan Documents, together with such ~~agreements~~ actions and ~~to exercise such~~ powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As Any Lender 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 such Lender and its Affiliates may accept deposits from, lend money to and generally engage in any ~~matters~~ kind of business with the Borrower or any of its Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. (c) The Administrative Agent shall not have any duties or obligations except those expressly ~~provided for herein and~~ set forth in the ~~other~~ Loan ~~Documents~~ Documents. Without limiting the generality of the foregoing, (~~including enforcement or collection),~~ i) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Unmatured Default or an Event of Default has occurred and is continuing, (ii) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected~~ in ~~so acting or refraining from acting) upon the written instructions of~~ writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, pursuant to~~ necessary under the ~~terms~~ circumstances as provided in ~~the Loan Documents~~Section 11.01), ~~and, unless~~ and ~~until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that~~ (iiii) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except 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 ~~any Borrower, any Subsidiary~~ the Borrower or any ~~Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries or Affiliates that is communicated to or obtained by the ~~Person~~ Lender serving as Administrative Agent or any of its Affiliates in any capacity. ~~Nothing in this Agreement shall require the~~ The Administrative Agent ~~to expend~~ shall not be liable for any action taken or ~~risk its own funds~~ not taken by it with the consent or ~~otherwise incur any financial liability~~ at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in ~~the performance of any of its duties hereunder~~ Section 11.01) or in the ~~exercise~~ absence of its own gross negligence or wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Unmatured Default or an Event of Default ~~has occurred~~ unless and until written notice thereof is ~~continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference~~ given to the Administrative Agent ~~is not intended to connote any fiduciary duty~~ by the Borrower or ~~other implied~~ a Lender (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against in which case the Administrative Agent ~~based on an alleged breach~~ shall promptly give a copy of ~~fiduciary duty by~~ such written notice to the Lenders and the Issuing Banks). The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with ~~this Agreement and~~ any Loan Document, (B) the ~~transactions contemplated hereby; and~~ contents of any certificate, report or other document delivered thereunder or in connection therewith, (iiC) ~~nothing~~ the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement~~ any Loan Document, (D) the validity, enforceability, effectiveness or genuineness of any Loan Document ~~shall require~~ or any other agreement, instrument or document, or (E) the satisfaction of any condition set forth in Article VI or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. Neither the Syndication Agent ~~to account to~~ nor any ~~Lender for~~ Co-Documentation Agent shall have any ~~sum~~ duties or obligations in such capacity under any of the ~~profit element of any sum received by the Administrative Agent for its own account~~Loan Documents. (d) 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 believed by it to be genuine and to have been signed or sent 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 be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. (e) The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through ~~any~~ one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any ~~of their respective~~ and all its duties and exercise ~~their respective~~ its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding subsections of this Section 8 10.01 shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities ~~pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever~~ in ~~such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have~~ connection with the ~~benefit~~ syndication of the ~~indemnities~~ credit facilities provided for ~~hereunder~~herein as well as activities as Administrative Agent. (f) ~~In case~~ Subject to the appointment and acceptance of ~~the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter~~ a successor Administrative Agent as provided in ~~effect~~this subsection (f), the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (~~irrespective of whether~~ which consent shall not be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the ~~principal of any Loan~~ Required Lenders and shall ~~then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether~~ have accepted such appointment within 30 days after the retiring Administrative Agent ~~shall have made any demand~~ gives notice of its resignation, then the retiring Administrative Agent may, on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent ~~(including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies~~ which shall be a Lender or ~~other property payable or deliverable on any such claims and to distribute~~ an Affiliate of a Lender. Upon the ~~same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the~~ acceptance of its appointment as Administrative Agent ~~and~~hereunder by a successor, in such successor shall succeed to and become vested with all the ~~event that~~ rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall ~~consent~~ be discharged from its duties and obligations hereunder. The fees payable by the Borrower to ~~the making of such payments directly to the Lenders, to pay to the~~ a successor Administrative Agent ~~any amount due~~ shall be the same as those payable to ~~it, in~~ its ~~capacity as~~ predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, ~~under~~ the ~~Loan Documents (including under~~ provisions of this Article and Section ~~9.5). Nothing contained herein~~ 11.04 shall ~~be deemed to authorize~~ continue in effect for the benefit of such retiring Administrative ~~Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization~~Agent, ~~arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote~~ its sub-agents and their respective Related Parties in respect of ~~the claim~~ any actions taken or omitted to be taken by any of ~~any Lender in any such proceeding~~them while it was acting as Administrative Agent. (g) ~~The provisions of this Section 8 are solely for the benefit of the Administrative~~ Each Lender acknowledges that it has independently and without reliance upon any Agent ~~and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers~~ or any ~~Subsidiary~~other Lender 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 also acknowledges that it will, independently and without reliance upon any Agent or any ~~of their respective Affiliates~~other Lender and based on such documents and information as it shall from time to time deem appropriate, ~~shall have~~ continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~rights as a third party beneficiary under~~ other Loan Document or any ~~such provisions~~related agreement or any document furnished hereunder or thereunder.

Appears in 2 contracts

Sources: Credit Agreement (Duquesne Light Holdings Inc), Credit Agreement (Duquesne Light Holdings Inc)

Authorization and Action. ~~(a)~~ Each Lender hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such ~~actions as agent on its behalf~~ action and to exercise such powers and discretion under this Agreement ~~and the other Loan Documents~~ as are delegated to the Administrative Agent ~~under such agreements and to exercise~~ by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in the other Loan Documents~~ by this Agreement (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, ~~pursuant~~ or as the Administrative Agent shall believe in good faith to be necessary, under the ~~terms in the Loan Documents~~circumstances as provided herein), ~~and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action ~~that (i)~~ that, in its opinion, exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ applicable law~~, including any action that may be in violation~~ . The Administrative Agent agrees to give to each Lender prompt notice of each notice given to it by the Borrower as required by the terms of this Agreement or at the request of the ~~automatic stay under~~ Borrower, and any ~~requirement of law relating~~ notice provided pursuant to ~~bankruptcy~~Section 5.01(c)(iv), insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan Documents, the Administrative but otherwise no Agent shall ~~not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower, any Subsidiary~~ the Borrower or ~~any Affiliate of any of the foregoing~~ its Subsidiaries or Affiliates that is communicated to or obtained by the Person serving as ~~Administrative~~ an Agent or any of its Affiliates in any capacity. ~~Nothing in~~ Notwithstanding any provision to the contrary contained elsewhere herein, no Agent shall have any duties or responsibilities, except those expressly set forth herein, nor shall any Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement ~~shall require the Administrative Agent to expend or risk its own funds~~ or otherwise ~~incur~~ exist against any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the BorrowerAgent. Without limiting the generality of the ~~foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent~~foregoing sentence, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” ~~(or any similar term)~~ herein ~~or in any other Loan Document~~ with reference to ~~the Administrative~~ any Agent is not intended to connote any fiduciary ~~duty~~ or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, ~~and that~~ such term is used merely as a matter of market ~~custom~~ custom, and is intended to create or reflect only an administrative relationship between independent contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 2 contracts

Sources: Term Credit Agreement (Mondelez International, Inc.), Term Credit Agreement (Mondelez International, Inc.)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent and collateral agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ either Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent and the Collateral Agent (together the “Agents”) are commercial in nature and not to invest in the general performance or operations of ~~the~~ either Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby; (ii) where the Agents are required or deemed to act as a trustee in respect of any Collateral over which a security interest has been created pursuant to a Loan Document expressed to be governed by the laws of the United States, or is required or deemed to hold any Collateral “on trust” pursuant to the foregoing, the obligations and liabilities of the Agents to the Secured Parties in their capacity as trustee shall be excluded to the fullest extent permitted by applicable law; and (iiiii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No None of the Agents or any Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any ~~Borrower~~ Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such Borrower~~the Borrower Representative) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.05, ~~2.7~~ 2.20, and ~~2.10~~9.05) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the ~~Lenders~~Lenders or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.05). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article VIII are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of ~~any Borrower~~the Borrower Representative’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article VIII, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the provisions of this Article VIII.

Appears in 2 contracts

Sources: Credit Agreement (Optimum Communications, Inc.), Credit Agreement (Optimum Communications, Inc.)

Authorization and Action. (a) Each Lender hereby irrevocably appoints GLAS to act on its behalf as the ~~entity named as~~ Administrative Agent in hereunder and under the ~~heading~~ other Credit Documents, as applicable, for the benefit of ~~this Agreement~~ the Secured Parties, and hereby irrevocably appoints GLAS to act on its ~~successors and assigns to serve~~ behalf as the ~~administrative agent~~ Collateral Trustee under the ~~Loan~~ other Credit Documents, as applicable, for the benefit of the Secured Parties, and each such Lender irrevocably authorizes the Administrative Agent and the Collateral Trustee to take such ~~actions~~ action as agent on its ~~behalf~~ behalf, including execution of the other Credit Documents, and to exercise such powers and discretion under this Agreement and the other ~~Loan Documents~~ Credit Documents, as applicable, as are delegated to the Administrative Agent ~~under such agreements~~ and ~~to exercise~~ the Collateral Trustee by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other Loan~~ Credit Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes or Loans), the Administrative Agent and the Collateral Trustee shall not be required to exercise any discretion or take any ~~action~~action and no implied covenants or obligations shall be read into this Agreement or any other Credit Document, as applicable, against the Administrative Agent or the Collateral Trustee, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the ~~Required~~ Requisite Lenders (~~or such other number or percentage of the Lenders as shall be necessary~~or, ~~pursuant to the terms in the Loan Documents~~if required hereby, all Lenders), ~~and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Notes; provided, however, that in no event shall the Administrative Agent or the Collateral Trustee be required, and no provision in this Agreement or any other Credit Document shall ~~not~~ be ~~required~~ deemed to require the Administrative Agent or the Collateral Trustee, to take any action that ~~(i) the Administrative Agent in good faith believes~~ exposes it to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or any other ~~Loan~~ Credit Document or applicable ~~law, including any action that may be in violation of the automatic stay under any requirement of~~ law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing no provision in this Agreement or any other Credit Document shall require the Administrative Agent or the Collateral Trustee to expend or risk its own funds or otherwise incur ~~any~~ financial liability in the performance of ~~any of~~ its duties hereunder or under any other Credit Document or in the exercise of any of its rights or ~~powers~~ powers, if it shall have reasonable grounds ~~for believing~~ to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Without any further consent of the Lenders, the Administrative Agent and the Collateral Trustee shall be authorized to negotiate, execute and deliver on behalf of the Secured Parties any Intercreditor Agreement or any amendment (or amendment and restatement) to the Collateral Documents that are, in each case, consistent with the terms of this Agreement. (b) In further of the foregoing, each Lender hereby appoints the Collateral Trustee to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Credit Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental or related thereto. In this connection, the Collateral Trustee (and any Supplemental Agents appointed by the Collateral Trustee pursuant to Section 9.1(c) below for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights or remedies thereunder at the direction of the Collateral Trustee), shall be entitled to the benefits of this Section 9 (including, without limitation, Section 9.4, as though any such Supplemental Agent were an “Agent” under the Credit Documents) as if set forth in full herein with respect thereto. (c) ~~In performing its functions and duties hereunder and under the other Loan Documents, the~~ The Administrative Agent ~~is acting solely on behalf~~ may execute any of ~~the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and~~ its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any ~~Loan~~ other Credit Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder at the direction of the Collateral Trustee) by or through agents, employees or attorneys-in-fact and shall ~~require the Administrative Agent~~ be entitled to ~~account~~ advice of counsel and other consultants or experts concerning all matters pertaining to ~~any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative~~ such duties. Each Agent may also from time to time, when such Agent deems it to be necessary or desirable, perform any and all of its duties and exercise its rights and powers hereunder or under any other ~~Loan~~ Credit Document by or through any one or more sub-agents appointed by the ~~Administrative~~ Agent (each, a “Supplemental 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 by or through their respective Related Parties; provided, however, that no such Supplemental Agent shall be authorized to take any action with respect to any Collateral unless and except to the extent expressly authorized in writing by the Collateral Trustee. Should any instrument in writing from the Borrower or any other Credit Party be required by any Supplemental Agent so appointed by an Agent to more fully or certainly vest in and confirm to such Supplemental Agent such rights, powers, privileges and duties, the Borrower shall, or shall cause such Credit Party to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Agent. If any Supplemental Agent, or successor thereto, shall die, become incapable of acting, resign or be removed, all rights, powers, privileges and duties of such Supplemental Agent, to the extent permitted by applicable law, shall automatically vest in and be exercised by the Agent until the appointment of a new Supplemental Agent. The exculpatory provisions of this Section 8 9 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 ~~pursuant~~ in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. No Agent shall be responsible for the negligence or misconduct of any sub-agents except to ~~this Agreement~~the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. (d) In relation to any Swiss Security Agreements under which security of an accessory nature (akzessorische Sicherheit) is granted (the “Swiss Accessory Security Agreements”), each present and future Lender and any other Secured Party hereby appoints and authorizes the Collateral Trustee for the benefit of the Lenders and the Secured Parties to, with respect to such security of an accessory nature (akzessorische Sicherheit), take all action and exercise all powers and discretion in the name and for the account of such Secured Party as its direct representative (direkter Stellvertreter), including, without limitation, (i) to sign the relevant Swiss Accessory Security Agreements in its name, (ii) to accept, hold, administer and, if necessary, enforce the security granted under any of the Swiss Accessory Security Agreements, (iii) to agree to amendments, restatements and other alterations of the Swiss Accessory Security Agreements, (iv) to effect any release of the security under, and the termination of, any Swiss Accessory Security Agreements, and (v) to exercise such other rights, powers, authorities and discretions granted to the Collateral Trustee hereunder or under the relevant Swiss Accessory Security Agreements. In relation to any Swiss Security Agreements under which security of an non-accessory nature (nicht-akzessorische Sicherheit) is granted, each present and future Lender and other Secured Party hereby appoints and authorizes the Collateral Trustee for the benefit of the Lenders and the Secured Parties to, with respect to such security of an non-accessory nature (nicht-akzessorische Sicherheit), take all action and exercise all powers and discretion in the name of the Collateral Trustee but for the account of such Secured Party as its indirect representative (indirekter Stellvertreter). (e) ~~No Arranger~~ In no event shall ~~have~~ the Administrative Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or ~~duties whatsoever in such capacity under this Agreement~~ caused by, directly or ~~any other Loan Document~~ indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and ~~shall incur no liability hereunder~~ interruptions, loss or ~~thereunder in such capacity~~malfunctions of utilities, ~~but all such persons shall have the benefit of the indemnities provided for hereunder~~communications or computer (software and hardware) services. (f) ~~In case~~ For the avoidance of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due doubt and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official notwithstanding anything contrary in any ~~such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and~~Credit Document, in the event ~~that~~ of inconsistency between the ~~Administrative Agent~~ terms of this Section 9 of this Agreement and any other Credit Document, the terms of this Section 9 of this Agreement shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedingprevail. (g) ~~The provisions of this Section 8 are solely~~ Notwithstanding anything in the Credit Documents to the contrary, the Collateral Trustee shall have no responsibility for the ~~benefit of the Administrative Agent and the Lenders~~preparation, ~~and, except solely to the extent~~ filing or recording of any ~~Borrower’s rights to consent pursuant to and subject to~~ instrument, document or financing statement or for the ~~conditions set forth in this Section 8, none~~ perfection or maintenance of ~~the Borrowers or~~ any ~~Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions~~security interest created hereunder.

Appears in 2 contracts

Sources: Credit and Guaranty Agreement (Concordia International Corp.), Credit and Guaranty Agreement (Concordia International Corp.)

Authorization and Action. ~~(a)~~ Each Lender hereby irrevocably appoints Well▇ ▇▇▇go as Agent and authorizes the ~~entity named~~ Agent to act as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors and assigns to serve as the administrative~~ agent under the Loan Documents, and ~~each Lender authorizes the Administrative Agent~~ to take such actions ~~as agent~~ on ~~its~~ such Lender's behalf and to exercise such powers and perform such duties under ~~this Agreement and~~ the ~~other~~ Loan Documents as are expressly delegated to the ~~Administrative~~ Agent ~~under~~ by the terms thereof, together with such ~~agreements and to exercise such~~ other powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative The Agent shall ~~not be required to exercise any discretion~~ have no duties or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms responsibilities except those expressly set forth in the Loan Documents), ~~and~~and no implied covenants, ~~unless and until revoked in writing~~functions, ~~such instructions~~ responsibilities, duties, obligations or liabilities shall be ~~binding upon each Lender; provided~~read into any Loan Document or otherwise exist against the Agent. Notwithstanding anything to the contrary contained herein, ~~however, that~~ the ~~Administrative~~ Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) which is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law. Neither the Agent nor any Lender shall be responsible to any other Lender for any recitals, ~~including~~ statements, representations or warranties made by Borrower contained in any ~~action that may be in violation of~~ Loan Document, for the ~~automatic stay under any requirement of law relating to bankruptcy~~value, ~~insolvency~~ validity, effectiveness, genuineness, enforceability or ~~reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation~~ sufficiency of any ~~requirement of law relating~~ Loan Document or the Collateral or for any failure by Borrower to ~~bankruptcy, insolvency~~ perform its respective obligations hereunder or ~~reorganization or relief of debtors; provided, further, that the Administrative~~ thereunder. The Agent may ~~seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action~~ employ agents and ~~may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose,~~ attorneys-in-fact and shall not be ~~liable~~ responsible to any Lender for the ~~failure to disclose, any information relating to any Borrower, any Subsidiary~~ negligence or ~~any Affiliate~~ misconduct of any of such agents or attorneys-in-fact selected by it with reasonable care. Neither the ~~foregoing that is communicated to or obtained by the Person serving as Administrative~~ Agent or nor any of its ~~Affiliates in any capacity. Nothing in this Agreement~~ directors, officers, employees or agents shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account responsible to any Lender for any ~~sum~~ action taken or ~~the profit element of~~ omitted to be taken by it or them under any ~~sum received by the Administrative Agent~~ Loan Document or in connection therewith, except for its or their own ~~account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder~~ gross negligence or wilful misconduct. Except as otherwise provided under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement~~. (e) No Arranger~~ , the Agent shall ~~have obligations or duties whatsoever in~~ take such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding action with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents ~~(including under Section 9.5). Nothing contained herein~~ as shall be ~~deemed to authorize~~ directed by the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedingRequired Lenders. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Loan Agreement (Good Guys Inc)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ Parent, the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.~~ Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender ~~or holder of any other obligation~~ other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-~~sub- agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No Joint Lead Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any ~~Borrower~~ Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of Parent, the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Indus Realty Trust, Inc.)

Authorization and Action. ~~(a)~~ Each Lender ~~hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents,~~ and each ~~Lender~~ Issuing ------------------------ Bank hereby appoints and authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other ~~Loan~~ Basic Documents as are delegated to the Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other Loan Documents (including~~ Basic Documents, including, without limitation, enforcement or ~~collection)~~collection of the Notes, the Administrative Agent shall not be required to exercise any discretion or take any action, ~~but~~ and shall not be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) except upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of the Notes; ~~provided, however,~~ provided that the Administrative Agent shall not be required to take any action -------- that ~~(i) the Administrative Agent in good faith believes~~ exposes it to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent agrees to give to each Issuing Bank and ~~any such sub-agent may perform any~~ each Lender prompt notice of ~~their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions~~ each notice given to it by the Borrower or Terra pursuant to the terms of this ~~Section 8 shall apply to any such sub-agent and to~~ Agreement. No party designated on the ~~Related Parties of the Administrative Agent and any such sub-agent and shall apply to their respective activities pursuant to this Agreement. (e) No Arranger~~ signature pages hereof as a "Syndication Agent" or a "Documentation Agent" shall have ~~obligations~~ any liability or ~~duties~~ responsibility whatsoever ~~in such capacity under this Agreement or any other Loan Document and shall incur no liability~~ hereunder ~~or thereunder~~ in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due . Each Lender and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwiseIssuing Bank: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Terra Industries Inc)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ the Lead Borrower, any Restricted Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.~~ Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of ~~any other obligation~~ Obligations other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby; (ii) [reserved]; and (iiiii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article VIII shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No None of any Co-Syndication Agent, the Sustainability Structuring Agent, any Bookrunner or any Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any ~~Borrower~~ Loan Party under any ~~Federal~~federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such Borrower~~any Loan Party) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under ~~Sections 2.3~~Section 2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other holder of the Obligations to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the ~~Lenders~~Lenders or any other holder of the Obligations, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article VIII are solely for the benefit of the Administrative ~~Agent and~~ Agent, the Lenders, and, except solely to the extent of ~~any~~ the Lead Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article VIII, none of the ~~Borrowers~~ Lead Borrower or any Restricted Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each holder of the Obligations, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the provisions of this Article VIII. (h) The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified ▇▇▇▇▇▇.

Appears in 1 contract

Sources: Credit Agreement (ESAB Corp)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Credit Agreement and its successors and assigns to serve as the administrative agent under the ~~Loan Documents,~~ Credit Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Credit Agreement and the other ~~Loan~~ Credit Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the ~~Loan~~ Credit Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such ~~Loan~~ Credit Documents. (b) As to any matters not expressly provided for herein and in the other ~~Loan~~ Credit Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the ~~Loan~~ Credit Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Credit Agreement or any other ~~Loan~~ Credit Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the ~~Loan~~ Credit 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 ~~any~~ Parent, the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Credit Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other ~~Loan~~ Credit Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature~~. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower~~. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender ~~or holder of any other obligation~~ other than as expressly set forth herein and in the other ~~Loan~~ Credit Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other ~~Loan~~ Credit Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Credit Agreement ~~and~~ and/or the transactions contemplated hereby; and (ii) nothing in this Credit Agreement or any ~~Loan~~ Credit Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other ~~Loan~~ Credit Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Credit Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No None of any Syndication Agent, any Documentation Agent or any Arranger shall have obligations or duties whatsoever in such capacity under this Credit Agreement or any other ~~Loan~~ Credit Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any ~~Borrower~~ Credit Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.08, ~~2.7~~ 2.09, 3.01, 3.04 and ~~2.10~~9.04) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the ~~Loan~~ Credit Documents (including under Section ~~9.5~~9.04). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of Parent, the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Term Loan Agreement (Healthcare Trust of America Holdings, LP)

Authorization and Action. ~~(a)~~ Each Construction/Acquisition Lender hereby ~~irrevocably~~ appoints and authorizes the ~~entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents~~Construction/Acquisition Agent, and each Term Lender hereby appoints and authorizes the ~~Administrative Agent~~ Term Agent, to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other ~~Loan~~ Credit Documents as are delegated to each such Agent by the ~~Administrative Agent under such agreements~~ terms hereof and ~~to exercise~~ thereof, together with such powers as are reasonably incidental thereto. ~~Without limiting~~ The Agents will have no duties, responsibilities, obligations or liabilities other than those expressly set forth in the ~~foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver~~Credit Documents, and ~~to perform its~~ no additional duties, responsibilities, obligations ~~under, each~~ or liabilities will be inferred from the provisions of the ~~Loan~~ Credit Documents ~~to which~~ or imposed on the ~~Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b)~~ Agents. As to ~~any~~ matters not expressly provided for ~~herein and in~~ by this Agreement or the other ~~Loan~~ Credit Documents (including enforcement or ~~collection~~collection of the Notes), the ~~Administrative Agent shall~~ Agents will not be required to exercise any discretion or take any action, but ~~shall~~ will be required to act or to refrain from acting (and ~~shall~~ will be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the ~~Required Lenders (or such other number or percentage of the Lenders as shall be necessary~~Majority Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions ~~shall~~ will be binding upon ~~each Lender; provided~~all the Lenders and all holders of Notes, ~~however,~~ provided that the ~~Administrative Agent shall not~~ Agents will in no event be required to take any action ~~that (i)~~ which exposes them to personal liability, which is contrary to the ~~Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders~~ Credit Documents or Law or with respect to ~~such action~~ which the Agents do not receive adequate instructions or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction full indemnification from the ~~Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided~~Lenders. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article VII are solely for the benefit of the ~~Administrative Agent~~ Agents, their agents and their respective affiliates and the Lenders. The Agents have no duties or relationships of trust or agency with or to Guarantor, ~~and~~NEO, ~~except solely to~~ Borrower, the ~~extent of any Borrower’s rights to consent pursuant to and subject to~~ Affiliates, the ~~conditions set forth in this Section 8, none of the Borrowers~~ Project Parties or ~~any Subsidiary, or any of~~ their respective ~~Affiliates, shall have any rights as a third party beneficiary under any such provisions~~affiliates.

Appears in 1 contract

Sources: Construction, Acquisition and Term Loan Agreement (NRG Energy Inc)

Authorization and Action. (a) Each Lender (in its capacity as a Lender) hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement of the Obligations or ~~collection~~collection of the Obligations owing under the Loan Documents), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action that ~~(i)~~ exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing~~: (i)~~ , each Lender hereby authorizes and instructs the Administrative Agent ~~does not assume and shall not~~ to enter into the documents to be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty entered into by the Administrative Agent expressly mentioned in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own accountSection 3.01. (da) The Administrative Agent may ~~perform~~ execute any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Term Loan Collateral Documents or of exercising any rights and remedies thereunder at the direction of the Term Loan Collateral Agent) by or through agents, employees or attorneys-in-fact and shall ~~incur no liability hereunder~~ be entitled to advice of counsel and other consultants or ~~thereunder in~~ experts concerning all matters pertaining to such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the duties. The Administrative Agent shall ~~have made any demand on such Borrower) shall~~ not be ~~entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim~~ responsible for the ~~whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary~~ negligence or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf misconduct of any ~~Lender any plan of reorganization~~agent, ~~arrangement, adjustment~~ employee or ~~composition affecting~~ attorney-in-fact that it selects in accordance with the ~~Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The~~ foregoing provisions of this Section ~~8 are solely for~~ 7.01(b) in the ~~benefit~~ absence of the Administrative ~~Agent and the Lenders, and, except solely to the extent of any Borrower~~Agent’s ~~rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers~~ gross negligence or ~~any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions~~willful misconduct.

Appears in 1 contract

Sources: Senior Secured Term Loan Credit Agreement (U.S. Well Services, Inc.)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Each Lender of a Facility hereby agrees that, except as otherwise set forth herein, any action taken by the Majority Facility Lenders under such Facility in accordance with the provisions of this Agreement or the Loan Documents, and the exercise by the Majority Facility Lenders under such Facility of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders under such Facility. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.~~ Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender ~~or holder of any other obligation~~ other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No The Arranger shall have no obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but ~~all such persons~~ shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~10.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~10.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Jones Lang LaSalle Income Property Trust, Inc.)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification ~~and is exculpated in a manner~~ satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature~~. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower~~. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby~~; and~~; (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent selected by the Administrative Agent and approved by the Borrower (any such approval not to be unreasonably withheld or delayed and no such approval shall be required while any Event of Default shall have occurred and is continuing) except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such approved sub-agent. (e) No None of any Co-Syndication Agent, any Co-Documentation Agent or any Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to ~~any~~ the Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any other obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~8.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~8.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: 364 Day Credit Agreement (National Fuel Gas Co)

Authorization and Action. (a) Each Lender hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf (including execution of the other Loan Documents) and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to the Administrative Agent ~~under such agreements and to exercise~~ by the terms of the Loan Documents, together with such powers as are reasonably incidental thereto. ~~Without limiting~~ The provisions of this Article X are solely for the ~~foregoing, each Lender hereby authorizes~~ benefit of the Administrative Agent and, except for any approvals or rights to ~~execute and deliver~~receive notices specifically set forth in this Article X, ~~and to perform its obligations under, each~~ Borrower shall not have any rights as a third-party beneficiary or otherwise under any of the ~~Loan Documents to which the~~ other provisions of this Article X. The Administrative Agent ~~is a party, to exercise all rights, powers and remedies that the Administrative Agent may~~ shall not have ~~under such Loan Documents. (b) As to~~ any ~~matters not~~ duties or obligations except those expressly ~~provided for~~ set forth herein ~~and~~ or in the other Loan ~~Documents~~ Documents. Without limiting the generality of the foregoing, (~~including enforcement or collection),~~ i) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (ii) the Administrative Agent shall have no duty to take any discretionary action or exercise any discretionary rights or powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to ~~exercise any discretion or take any action~~exercise, ~~but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon~~ including as directed by the ~~written instructions of the Required~~ Majority Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, pursuant to~~ necessary under the ~~terms~~ circumstances as provided in ~~the Loan Documents~~this Agreement)~~, and, unless and until revoked in writing, such instructions shall be binding upon each Lender~~; ~~provided, however,~~ provided that the Administrative Agent shall not be required to take any action ~~that (i)~~ that, in its opinion or the opinion of its counsel, may expose the Administrative Agent ~~in good faith believes exposes it~~ to liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under ~~any requirement of law relating to bankruptcy~~the Bankruptcy Code or other applicable law, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and ~~may refrain from acting until such clarification or direction has been provided. Except~~ (iii) except as expressly set forth in the Loan Documents, the Administrative Agent shall ~~not~~ have ~~any~~ no duty to disclose, and shall not be liable for the failure to disclose, any information relating to any ~~Borrower, any Subsidiary~~ Relevant Party or any ~~Affiliate~~ of ~~any of the foregoing~~ their Affiliates that is communicated to or obtained by the ~~Person serving as~~ Administrative Agent or any of its Affiliates in any capacity. ~~Nothing~~ The Administrative Agent shall be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with the instructions of the Majority Lenders or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to itAgreement). (cb) The Administrative Agent shall not be liable for any action taken or not taken, nor any determination, decision or consent made or granted by it, in the absence of its own gross negligence or willful misconduct. In ~~performing its functions and duties hereunder and under the other Loan Documents~~addition, the Administrative Agent ~~is acting solely on behalf~~ shall not be liable in any circumstance for any action taken or not taken, nor any determination, decision or consent made or granted by it, in each case with the consent or at the request of the Majority Lenders (or such other number or percentage of the Lenders ~~(except~~ as shall be necessary under the circumstances as provided in ~~limited circumstances expressly provided for herein relating to the maintenance of the Register~~Section 9.4)~~, and its duties are entirely mechanical and administrative in nature~~. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in Wherever this Agreement or any Loan Document ~~shall require~~ provides that the Administrative Agent ~~to account to~~ may make any ~~Lender for~~ determination or decision or grant any ~~sum or the profit element of any sum received by~~ consent, the Administrative Agent may, but shall have no obligation to, seek direction from the Majority Lenders with respect thereto and, in either case, the Administrative Agent shall be fully protected in exercising its good faith discretion in taking any such action or exercising any discretion unless it has sought directions from the Lenders with respect to the applicable matter and has been expressly instructed otherwise by the Majority Lenders with respect to the applicable matter. (c) The Lenders are not partners or co-venturers, and no Lender shall be liable for ~~its own account~~the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on the Loan (or any portion thereof) after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and not investments in a business enterprise or securities. (d) ~~The~~ Each Lender, by signing this Agreement or an Assignment and Acceptance, as applicable, (i) represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent ~~may perform~~ or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold its portion of the Loan hereunder and (ii) expressly acknowledges that neither the Administrative Agent nor any of its ~~duties~~ respective officers, directors, employees, agents, attorneys in fact have made any representations or warranties to it and ~~exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed~~ that no act by the Administrative ~~Agent. The Administrative~~ Agent ~~and~~ hereafter taken, including any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 8 shall apply to any such sub-agent and to the Related Parties review of the Administrative Agent and any such sub-agent and shall apply to their respective activities pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacityaffairs of a Relevant Party, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to ~~authorize~~ constitute any representation or warranty by the Administrative Agent to ~~authorize or consent to or accept or adopt on behalf of~~ any Lender. Each Lender ~~any plan of reorganization~~shall, ~~arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize~~ independently and without reliance upon the Administrative Agent ~~to vote in respect~~ or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the ~~claim of~~ United States securities laws concerning Borrower and its Affiliates) 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 ~~Lender~~ related agreement or any document furnished hereunder or thereunder and in ~~any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely~~ deciding whether or to the extent ~~of any Borrower’s rights~~ to ~~consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights~~ which it will continue as a ~~third party beneficiary under any such provisions~~lender or assign or otherwise transfer its rights, interests and obligations hereunder.

Appears in 1 contract

Sources: Loan Agreement (Front Yard Residential Corp)

Authorization and Action. (a) Each Lender and Issuing Bank hereby irrevocably appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ DBNY and its successors and assigns to serve as the administrative agent and collateral agent under the Loan ~~Documents,~~ Documents and each Lender and each Issuing Bank authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to ~~exercise any discretion or~~ take any action, but shall be required to act or to refrain from acting (and shall be fully protected 131 AMERICAS 94977503 in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification ~~and is exculpated in a manner~~ satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any ~~requirement~~ Requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law Law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any Borrower~~New Holdings, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Notwithstanding anything herein to the contrary, in each instance where discretionary rights or powers conferred upon the Administrative Agent may be exercised or refrained from being exercised, the Administrative Agent shall have the absolute right, in its sole discretion, to consult with, or seek the affirmative or negative vote from, the Required Lenders or, if otherwise applicable, the Lenders, and it may do so pursuant to a negative notice or otherwise. (c) The Administrative Agent shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement or the other Loan Documents arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; business interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action. (d) The Administrative Agent shall not be (i) required to qualify in any jurisdiction in which it is not presently qualified to perform its obligations as Administrative Agent or (ii) required to take any enforcement action against a Loan Party or any other obligor outside of the United States. (e) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.~~ Without limiting the generality of the foregoing:: 132 AMERICAS 94977503 (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (df) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this ~~Agreement~~Agreement and the other Loan Documents. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (fg) In case of the pendency of any proceeding with respect to any ~~Borrower~~ Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such Borrower~~any of the Borrowers) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for ~~the whole amount of the principal and interest owing and unpaid in respect of the~~ Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~4.7, ~~2.7~~ 4.10, 4.18, 4.20 and ~~2.10~~11.5) allowed in such judicial proceeding; ~~and~~and 133 AMERICAS 94977503 (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the ~~Lenders~~Lenders or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~11.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (gh) The provisions of this Section 8 10.1 are solely for the benefit of the Administrative ~~Agent~~ Agent, each Issuing Bank and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of ~~the Borrowers~~ New Holdings or any ~~Subsidiary, or any of their respective Affiliates,~~ Subsidiary shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the guarantees of the Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.

Appears in 1 contract

Sources: Abl Credit Agreement (Cumulus Media Inc)

Authorization and Action. (a) Each Lender hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender authorizes~~ the Administrative Agent as such and as “Collateral Trustee” under the Mortgages and authorizes it to take such ~~actions~~ action as agent and as “Collateral Trustee” on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents (including the Mortgages) as are delegated to it by the ~~Administrative Agent under such agreements~~ terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. ~~Without limiting the foregoing, each Lender~~ KeyBank hereby ~~authorizes the~~ accepts its appointment as Administrative Agent ~~to execute~~ and ~~deliver,~~ as Collateral Trustee. The Administrative Agent shall have no duties or responsibilities except those expressly set forth in this Agreement and ~~to perform its obligations under, each of~~ the other Loan Documents ~~to which the Administrative Agent is~~ and shall not be a ~~party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents~~fiduciary for any Lender. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Notes and any action taken or failure to act pursuant thereto shall be binding on all the Lenders; provided, however, that the Administrative Agent shall not be required to take any action that ~~(i)~~ exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this ~~Agreement or~~ Agreement, any other Loan Document or applicable ~~law, including any~~ law and except for action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that expressly required by the Administrative Agent ~~may seek clarification~~ hereunder or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in under the Loan Documents, the Administrative Agent shall ~~not have any duty~~ in all cases be fully justified in failing or refusing to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability act hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) unless it shall be ~~entitled and empowered (but not obligated)~~ indemnified to its satisfaction by ~~intervention in such proceeding or otherwise: (i) to file and prove a claim for~~ the ~~whole amount of the principal and interest owing and unpaid in respect of the Loans~~ Lenders against any and all ~~other Obligations~~ liability and expense that ~~are owing and unpaid and to file such other documents as~~ may be ~~necessary~~ incurred by it by reason of taking or ~~advisable in order~~ continuing to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on take any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedingaction. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Loan and Security Agreement (K-Sea Transportation Partners Lp)

Authorization and Action. ~~(a)~~ Each ~~Lender~~ of the Secured Parties hereby irrevocably appoints ~~the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve~~ Citibank, N.A. as the ~~administrative agent under the Loan Documents,~~ Program Agent and ~~each Lender~~ authorizes the ~~Administrative~~ Program Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other ~~Loan~~ Program Documents as are delegated to the ~~Administrative~~ Program Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers as are reasonably incidental thereto. ~~Without limiting~~ Citibank, N.A. hereby accepts such appointment as Program Agent. The Program Agent shall not have any duties or responsibilities, except those expressly set forth herein or in the ~~foregoing~~other Program Documents, ~~each Lender hereby authorizes the Administrative Agent to execute and deliver~~or any fiduciary relationship with any Secured Party, and ~~to perform its~~ no implied covenants, functions, responsibilities, duties or obligations ~~under, each~~ or liabilities on the part of the ~~Loan Documents to which~~ Program Agent shall be read into this Agreement or any other Program Document or otherwise exist for the ~~Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b)~~ Program Agent. As to any matters not expressly provided for ~~herein and in~~ by this Agreement or the other ~~Loan Documents (including enforcement or collection)~~Program Documents, the ~~Administrative~~ Program Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each LenderMajority Lenders; provided, however, that the ~~Administrative~~ Program Agent shall not be required to take any action ~~that (i)~~ which exposes the ~~Administrative~~ Program Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to this ~~Agreement~~ Agreement, the other Program Documents or Applicable Law. Each Secured Party agrees that in any ~~other Loan Document or applicable law, including any action that may be~~ instance in ~~violation of~~ which the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, Program Documents provide that the ~~Administrative Agent~~ Program Agent’s consent may ~~seek clarification or direction from the Required Lenders prior to~~ not be unreasonably withheld, provide for the exercise of ~~any such instructed action and may refrain from acting until such clarification~~ the Program Agent’s reasonable discretion, or ~~direction has been provided. Except as expressly set forth in the Loan Documents~~provide to a similar effect, ~~the Administrative Agent~~ it shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of in its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating instructions to the ~~maintenance of the Register), and~~ Program Agent withhold its ~~duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance~~ consent or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreementdiscretion in an unreasonable manner. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (Invesco Dynamic Credit Opportunities Fund)

Appears in 1 contract

Sources: Credit Agreement (Felcor Lodging Trust Inc)

Authorization and Action. (a) Each Lender Party (in its capacity as a Lender, the Issuing Bank, the European Letter of Credit Bank, the Swing Line Bank and/or any Hedge Bank) hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. ~~Without limiting the foregoing, each Lender hereby authorizes the~~ The Administrative Agent ~~to execute~~ shall have no duties or responsibilities except those expressly set forth in this Agreement and ~~deliver, and to perform its obligations under, each of~~ the other Loan Documents ~~to which the Administrative Agent is~~ and shall not be a ~~party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents~~trustee for any Lender Party or Hedge Bank. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lender Parties and all holders of Notes; ~~provided~~and any action taken or failure to act pursuant there shall be binding on all of the Lender Parties; PROVIDED, ~~however~~HOWEVER, that the Administrative Agent shall not be required to take any action that ~~(i)~~ exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this ~~Agreement or~~ Agreement, any other Loan Document or applicable ~~law, including any~~ law and except for action ~~that may be in violation~~ expressly required of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent ~~may seek clarification~~ hereunder or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in under the Loan Documents, the Administrative Agent shall ~~not have any duty~~ in all cases be fully justified in failing or refusing to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability act hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) unless it shall be ~~entitled~~ indemnified to its satisfaction by the Lender Parties and ~~empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans~~ Hedge Banks against any and all ~~other Obligations~~ liability and expense that ~~are owing and unpaid and to file such other documents as~~ may be ~~necessary~~ incurred by it by reason of taking or ~~advisable in order~~ continuing to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on take any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedingaction. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Polyvision Corp)

Authorization and Action. (a) The Administrative Agent shall: (i) hold, administer and realize any Collateral that is transferred or assigned by way of security (Sicherungseigentum/Sicherungsabtretung) or otherwise granted to it creating or evidencing a non-accessory security right (nicht akzessorische Sicherheit) in its own name as trustee (Treuhänder) for the benefit of the Secured Parties; 949049213.2 (ii) hold, administer, and realize any Collateral that is pledged (Verpfändung) or otherwise transferred to the Administrative Agent creating or evidencing an accessory security right (akzessorische Sicherheit) for the benefit of the Secured Parties; (iii) the Administrative Agent shall promptly forward to any Purchaser Agent the original or a copy of any document or report which is delivered to the Administrative Agent by any Transaction Party in connection with any Transaction Document (including, (i) in the case of any document or report specifically required to be delivered to the Administrative Agent by 12:00 noon (London time) on any Business Day, by the end of such Business Day of receipt and (ii) in the case of each other document or report, by 12:00 noon (London time) on the following Business Day); and (iv) upon receipt of the specified direction of all Purchasers, the Majority Committed Purchasers or the Required Committed Purchasers, as applicable, take any action which the Transaction Documents specify must be taken by the Administrative Agent upon receipt of such direction. It is understood and agreed that any Purchaser or Purchaser Agent shall have the ability to request a vote on any matter requiring Purchaser or Purchaser Agent consent hereunder at any time, in which event the Administrative Agent shall promptly solicit such vote. (b) Each ~~Lender~~ Secured Party hereby ratifies and approves all acts and declarations done by the Administrative Agent on such Secured Parties' behalf before the execution of this Agreement. (c) Each of the parties to this Agreement agrees that, in relation to any jurisdiction the courts of which would not recognize or give effect to the trust expressed to be created by this Agreement, the relationship of the Secured Parties to the Administrative Agent shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, all the other provisions of this Agreement shall have full force and effect between the parties to this Agreement. (d) Each of the Secured Parties hereby authorizes and grants power of attorney (Vollmacht) to the Administrative Agent to: (i) accept as its representative (Stellvertreter) any pledge or other creation of any accessory Collateral granted to it in relation to the German Security Documents and to execute and amend for and on its behalf all German Security Documents to which it is a party, and any other agreements related to the Collateral; (ii) execute on behalf of itself and the Secured Parties where relevant and without the need for any further referral to, or authority from, the Secured Parties or any other person all necessary releases of any Collateral created under any of the German Security Documents; 949049213.2 (iii) realize the Collateral in accordance with the German Security Documents; (iv) make and receive all declarations and statements which are necessary or desirable in connection with the Collateral or any of the German Security Documents; and (v) undertake all other necessary actions and measures. (e) The Administrative Agent is exempt from the restrictions of section 181 of the German Civil Code (Bürgerliches Gesetzbuch) or similar restrictions under any applicable law. (f) The Administrative Agent has the power to grant sub-power of attorney (including the release from the restrictions of section 181 of the German Civil Code). A Secured Party which, due to its statutes, is not able to grant an exemption from the restrictions of section 181 of the German Civil Code will notify the Administrative Agent accordingly. Upon demand of the Administrative Agent, such Secured Party will grant a certain power of attorney to the Administrative Agent in order to enable the Administrative Agent to act on the Secured Party's behalf in accordance with the Transaction Documents in a way the Administrative Agent deems appropriate to maintain the Secured Party's rights. (g) Each Purchaser and Purchaser Agent hereby irrevocably appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other ~~Loan~~ Transaction Documents as are delegated to the Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ the other Transaction Documents, together with such powers as are reasonably incidental thereto. Without limiting the foregoing, ~~each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which~~ the Administrative Agent is ~~a party~~empowered and authorized, on behalf of the Secured Parties, to ~~exercise all rights, powers~~ hold and ~~remedies that~~ administer the ~~Administrative Agent may have~~ Collateral as trustee for the benefit of the Secured Parties under ~~such Loan~~ the Security Documents. (bh) ~~As to any matters not expressly provided for herein and in~~ Without limiting the ~~other Loan Documents (including enforcement or collection)~~foregoing, the Administrative Agent ~~shall not be required~~ and the Seller hereby undertake to enter into an acknowledgment deed, substantially in the form attached hereto as Exhibit D, bearing certain date at law (data certa) with the Italian Originator and the Italian Collection Account Banks, in order to acknowledge that pursuant to Section 2.1 of this Agreement any right, title and interest arising from the Italian Account Security (including those transferred by the Italian Intermediate Transferor to the Seller under the Italian Intermediate Transfer Agreement) has been transferred by the Seller to the Administrative Agent (on behalf of the Purchasers), including the right to exercise ~~any discretion or take any action, but shall be required to act or to refrain from acting~~ all the Seller’s rights and powers under the Italian Account Security Agreement. (~~and shall be fully protected in so acting or refraining from acting~~i) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the The Administrative Agent shall not have any duties other than those expressly set forth in the Transaction Documents, and no implied obligations or liabilities shall be read into any Transaction Document, or otherwise exist, 949049213.2 against the Administrative Agent. The Administrative Agent does not assume, nor shall it be deemed to have assumed, any duty of care or obligation to, or relationship of trust or agency with, any Transaction Party, the Conduit Purchasers, the Committed Purchasers, the Purchaser Agents or any other Secured Party, except as expressly set out in the Transaction Documents. Notwithstanding any provision of this Agreement or any other Transaction Document, in no event shall the Administrative Agent ever be required to take any action ~~that (i) the Administrative Agent in good faith believes~~ which exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to ~~expend~~ personal liability or ~~risk its own funds or otherwise incur~~ which is contrary to any ~~financial liability in the performance~~ provision of any ~~of its duties hereunder~~ Transaction Document or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrowerapplicable Law. Without limiting the generality of the ~~foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent~~foregoing sentence, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” ~~(or any similar term) herein or~~ in ~~any other Loan Document~~ this Agreement with reference to the Administrative Agent is not intended to connote any fiduciary ~~duty~~ or other implied (or express) obligations arising under agency doctrine of any applicable ~~law~~Law. Instead, ~~and that~~ such term is used merely as a matter of market ~~custom~~ custom, and is intended to create or reflect only an administrative relationship between independent contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Securitization Agreement (Bungeltd)

Authorization and Action. (a) Each Lender and each Issuer hereby ~~irrevocably~~ appoints ▇▇▇▇▇ ▇▇▇▇▇ as the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents,~~ hereunder and each Lender and each Issuer authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender and each Issuer hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein~~ by this Agreement and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all Issuers; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to personal liability unless the Administrative Agent receives ~~written~~ an indemnification ~~and is exculpated in a manner~~ satisfactory to it from the Lenders and the Issuers with respect to such action or (ii) is contrary to this Agreement or applicable law. The Administrative Agent agrees to give to each Lender and each Issuer prompt notice of each notice given to it by any Loan Party pursuant to the terms of this Agreement or the other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (and the Issuers except ~~in limited circumstances expressly provided for herein relating~~ to the ~~maintenance of the Register~~limited extent provided in 2.6(b), and its duties are entirely ~~mechanical and~~ administrative in nature. The ~~motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the~~ Administrative Agent does not assume and shall not be deemed to have assumed any obligation ~~or duty~~ other than as expressly set forth herein and in the other Loan Documents or any other relationship as the agent, fiduciary or trustee of or for any ~~Lender~~ Lender, Issuer or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) Obligation. The Administrative Agent may perform any of its duties ~~and exercise its rights and powers hereunder or~~ under any ~~other~~ Loan Document by or through ~~any one~~ its agents or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreementemployees. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Revolving Credit Agreement (Boardwalk Pipeline Partners, LP)

Authorization and Action. (a) Each Lender hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender authorizes~~ the Administrative Agent as such and as “Collateral Trustee” under the Mortgages and authorizes it to take such ~~actions~~ action as agent and as “Collateral Trustee” on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents (including the Mortgages) as are delegated to it by the ~~Administrative Agent under such agreements~~ terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. ~~Without limiting the foregoing, each Lender~~ KeyBank hereby ~~authorizes the~~ accepts its appointment as Administrative Agent ~~to execute~~ and ~~deliver,~~ as Collateral Trustee. The Administrative Agent shall have no duties or responsibilities except those expressly set forth in this Agreement and ~~to perform its obligations under, each of~~ the other Loan Documents ~~to which the Administrative Agent is~~ and shall not be a ~~party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents~~fiduciary for any Lender. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Notes and any action taken or failure to act pursuant thereto shall be binding on all the Lenders; provided, however, ~~that~~ the Administrative Agent shall not be required to take any action that ~~(i)~~ exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this ~~Agreement or~~ Agreement, any other Loan Document or applicable ~~law, including any~~ law and except for action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that expressly required by the Administrative Agent ~~may seek clarification~~ hereunder or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in under the Loan Documents, the Administrative Agent shall ~~not have any duty~~ in all cases be fully justified in failing or refusing to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability act hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) unless it shall be ~~entitled and empowered (but not obligated)~~ indemnified to its satisfaction by ~~intervention in such proceeding or otherwise: (i) to file and prove a claim for~~ the ~~whole amount of the principal and interest owing and unpaid in respect of the Loans~~ Lenders against any and all ~~other Obligations~~ liability and expense that ~~are owing and unpaid and to file such other documents as~~ may be ~~necessary~~ incurred by it by reason of taking or ~~advisable in order~~ continuing to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on take any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedingaction. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Loan and Security Agreement (K-Sea Transportation Partners Lp)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the ~~Loan Documents,~~ Credit Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other ~~Loan~~ Credit Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the ~~Loan~~ Credit Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such ~~Loan~~ Credit Documents. (ba) As to any matters not expressly provided for herein and in the other ~~Loan~~ Credit Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the ~~Loan~~ Credit Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other ~~Loan~~ Credit Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; ~~provided,~~ provided further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the ~~Loan~~ Credit 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 ~~any~~ the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative ~~Agent~~ Agent, or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (cb) In performing its functions and duties hereunder and under the other ~~Loan~~ Credit Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other ~~Loan~~ Credit Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other ~~Loan~~ Credit Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby; and (ii) nothing in this Agreement or any ~~Loan~~ Credit Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (dc) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other ~~Loan~~ Credit Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (ed) ~~No Arranger~~ None of the Co-Syndication Agents, Structuring Agents, Documentation Agent or the Lead Arrangers shall have obligations or duties whatsoever in such capacity under this Agreement or any other ~~Loan~~ Credit Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (fe) In case of the pendency of any proceeding with respect to ~~any~~ the Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any ~~Loan~~ Loan, any Reimbursement Obligation or other Obligation of the Borrower under the Credit Documents shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.13, ~~2.7~~ 2.14, 2.16, 2.18 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative ~~Agent,~~ Agent under the ~~Loan~~ Credit Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations of the Borrower under the Credit Documents or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (gf) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral provided under the Credit Documents, to have agreed to the provisions of this Article.

Appears in 1 contract

Sources: Credit Agreement (Robinhood Markets, Inc.)

Authorization and Action. (a) Each Lender and the Issuer hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the ~~Administrative~~ Agent and the Collateral Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the ~~Administrative~~ Agent ~~under such agreements~~ or the Collateral Agent, as the case may be, by the terms hereof and ~~to exercise~~ thereof, together with such powers as are reasonably incidental thereto. Without ~~limiting~~ limitation of the foregoing, each Lender and the Issuer hereby authorizes the ~~Administrative~~ Agent (i) to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the ~~Administrative~~ Agent is or is to be a ~~party,~~ party and (ii) to exercise all rights, powers and remedies that the ~~Administrative~~ Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein~~ by this Agreement and in the other Loan Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), neither the ~~Administrative~~ Agent nor the Collateral Agent shall ~~not~~ be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the ~~Required Lenders (or such other number or percentage of the Lenders as shall be necessary~~Majority Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders, the Issuer, the Agent, the Collateral Agent and all holders of Notes; provided, however, that neither the ~~Administrative~~ Agent nor the Collateral Agent shall ~~not~~ be required to take any action ~~that (i)~~ which the ~~Administrative~~ Agent or the Collateral Agent, as the case may be, in good faith believes exposes it to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ is contrary to this Agreement or ~~any other Loan Document or~~ applicable law~~, including any action that may be in violation~~ . Each of the ~~automatic stay under~~ Agent and the Collateral Agent agrees to give to each Lender and the Issuer prompt notice of each notice given to it by any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior Loan Party pursuant to the ~~exercise~~ terms of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement ~~shall require the Administrative Agent to expend~~ or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Euramax International PLC)

Authorization and Action. ~~(a)~~ Each Lender ~~hereby irrevocably appoints the entity named~~ Party (in its capacities as ~~Administrative Agent in the heading~~ a Lender, an Issuing Bank (if applicable) and on behalf of ~~this Agreement~~ itself and its ~~successors~~ Affiliates as potential Hedge Banks) hereby (i) appoints and ~~assigns to serve as the administrative agent under the Loan Documents, and~~ authorizes each ~~Lender authorizes the Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to such Agent by the ~~Administrative Agent under such agreements~~ terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental ~~thereto. Without limiting the foregoing,~~ thereto (ii) appoints each ~~Lender hereby authorizes~~ of the Administrative Agent and the Collateral Agent as its attorney-in-fact with full authority in the place and stead of such Lender Party and in the name of such Lender Party or otherwise, from time to ~~execute and deliver~~time, ~~and~~ to ~~perform its obligations under, each of the Loan Documents to which~~ amend any Korean Collateral Document as the Administrative Agent ~~is a party,~~ or the Collateral Agent reasonably considers desirable or necessary to ~~exercise all rights, powers~~ give effect to the provisions of Section 8.1 or Section 8.11. Each Lender hereby ratifies and ~~remedies that the Administrative Agent may have under~~ will ratify any action taken by either such ~~Loan Documents. (b)~~ attorney from time to time as contemplated by this Section 7.1. As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (including enforcement or ~~collection~~collection of the Notes), ~~the Administrative~~ no Agent shall ~~not~~ be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lender Parties and all holders of Notes; provided, however, that ~~the Administrative~~ no Agent shall ~~not~~ be required to take any action that ~~(i) the Administrative~~ exposes such Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ applicable law~~, including any action that may be in violation~~ . Each Agent agrees to give to each Lender Party prompt notice of each notice given to it by the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior Borrower pursuant to the ~~exercise~~ terms of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Amkor Technology Inc)

Authorization and Action. (a) Each ~~Lender~~ of the Lenders, on behalf of itself and any of its Affiliates that are holders of Secured Obligations, and each Issuing Bank hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such actions ~~as agent~~ on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers ~~under this Agreement and the other Loan Documents~~ as are delegated to the Administrative Agent ~~under~~ by the terms hereof and of the other Loan Documents, together with such ~~agreements~~ actions and ~~to exercise such~~ powers as are reasonably incidental thereto. ~~Without limiting~~ In furtherance of the foregoing, ~~each Lender hereby authorizes~~ to the ~~Administrative Agent to execute and deliver, and to perform its obligations under~~extent required under the laws of any jurisdiction other than the United States of America, each of the ~~Loan Documents to which the Administrative Agent is a party~~Lenders, ~~to exercise all rights, powers~~ on behalf of itself and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates ~~in any capacity. Nothing in this Agreement shall require~~ that are Secured Parties, hereby grants to the Administrative Agent any required powers of attorney to ~~expend or risk its own funds or otherwise incur~~ execute any ~~financial liability in~~ Collateral Document governed by the ~~performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment~~ laws of such ~~funds~~ jurisdiction on such Lender’s or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in natureAffiliate’s behalf. The ~~motivations~~ provisions of this Article are solely for the benefit of the Administrative Agent ~~are commercial in nature~~ and ~~not to invest in~~ the ~~general performance or operations of~~ Lenders, and neither the ~~Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or~~ Borrowers nor any other ~~relationship~~ Obligor shall have rights as ~~the agent, fiduciary or trustee of or for any Lender or holder~~ a third party beneficiary of any ~~other obligation other than as expressly set forth herein and in the other Loan Documents, regardless~~ of ~~whether a Default or an Event of Default has occurred and is continuing (and it~~ such provisions. It is understood and agreed that the use of the term “agent” as used herein or in any other Loan Documents (or any similar term) ~~herein or in any other Loan Document~~ with reference to the Administrative Agent is not intended to connote any fiduciary ~~duty~~ or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, ~~and that~~ such term is used as a matter of market ~~custom~~ custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~); additionally, each Lender agrees that it will not assert any claim against~~ . (b) The bank serving as the Administrative Agent ~~based on an alleged breach~~ 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 such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of ~~fiduciary duty by~~ business with any Obligor or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. (c) In relation to Collateral which is subject to a Swiss Security Document, the Administrative Agent shall cause the ABL Administrative Agent to, subject to and in ~~connection~~ accordance with ~~this Agreement~~ the provisions of the Intercreditor Agreement: (i) hold and administer any non-accessory Collateral (nicht-akzessorische Sicherheit) governed by Swiss law as fiduciary (treuhänderisch) in its own name but for the ~~transactions contemplated hereby~~benefit of the Secured Parties; and (ii) ~~nothing~~ hold and administer any accessory Collateral (akzessorische Sicherheit) governed by Swiss law as direct representative (direkter Stellvertreter) in ~~this Agreement or any Loan Document shall require~~ the ~~Administrative Agent to account to any Lender for any sum or~~ name and on behalf of the ~~profit element of any sum received by the Administrative Agent for its own account~~Secured Parties. (d) ~~The~~ Each Secured Party hereby appoints the ABL Administrative Agent ~~may perform any of~~ as its ~~duties~~ direct representative (direkter Stellvertreter) and ~~exercise its rights and powers hereunder~~ authorizes the ABL Administrative Agent (whether or ~~under any other Loan Document~~ not by or through ~~any one~~ employees or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (eagents) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwiseto: (i) exercise such rights, remedies, powers and discretions as are specifically delegated to ~~file~~ or conferred upon the ABL Administrative Agent under the relevant Swiss Security Documents together with such powers and ~~prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that~~ discretions as are ~~owing and unpaid and to file~~ reasonably incidental thereto; (ii) take such ~~other documents~~ action on its behalf as may from time to time be ~~necessary~~ authorized under or ~~advisable~~ in ~~order to have~~ accordance with the ~~claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding~~relevant Swiss Security Documents; and (iiiii) ~~to collect~~ accept, enter into and ~~receive~~ execute as its direct representative (direkter Stellvertreter) any ~~monies~~ pledge or other ~~property payable or deliverable on~~ creation of any ~~such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official~~ accessory security right granted in ~~any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making~~ favor of such ~~payments directly to the Lenders, to pay to the Administrative Agent any amount due to it,~~ Secured Party in ~~its capacity as the Administrative Agent, under~~ connection with the Loan Documents ~~(including~~ under ~~Section 9.5). Nothing contained herein shall be deemed~~ Swiss law and to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant agree to and execute in its name and on its behalf as its direct representative (direkter Stellvertreter) any amendments, confirmations and/or alterations to any Swiss Security Document which creates a pledge or any other accessory security right (akzessorische Sicherheit) including the release or confirmation of release of such Collateral, all subject to the ~~conditions set forth in this Section 8, none~~ provisions of the ~~Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions~~Intercreditor Agreement.

Appears in 1 contract

Sources: Lc Credit Agreement (Weatherford International PLC)

Authorization and Action. ~~(a)~~ Each ~~Lender~~ of the Secure Parties hereby irrevocably appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other ~~Loan~~ Program Documents as are delegated to the ~~Administrative~~ Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers as are reasonably incidental thereto. ~~Without limiting~~ The Agent shall not have any duties or responsibilities, except those expressly set forth herein or in the ~~foregoing~~other Program Documents, ~~each Lender hereby authorizes the Administrative Agent to execute and deliver~~or any fiduciary relationship with any Secured Party, and ~~to perform its~~ no implied covenants, functions, responsibilities, duties or obligations ~~under, each~~ or liabilities on the part of the ~~Loan Documents to which~~ Agent shall be read into this Agreement or any other Program Document or otherwise exist for the ~~Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b)~~ Agent. As to any matters not expressly provided for ~~herein and in~~ by this Agreement or the other ~~Loan Documents (including enforcement or collection)~~Program Documents, the ~~Administrative~~ Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the ~~Required~~ Lenders (or ~~such other number or percentage of~~ the ~~Lenders as shall be necessary~~Secondary Lenders; PROVIDED, ~~pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however~~HOWEVER, that the ~~Administrative~~ Agent shall not be required to take any action ~~that (i)~~ which exposes the ~~Administrative~~ Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to this ~~Agreement~~ Agreement, the other Program Documents or Applicable Law. Each Secured Party agrees that in any ~~other Loan Document or applicable law, including any action that may be~~ instance in ~~violation of~~ which the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, Program Documents provide that the ~~Administrative Agent~~ Agent's consent may ~~seek clarification or direction from the Required Lenders prior to~~ not be unreasonably withheld, provide for the exercise of ~~any such instructed action and may refrain from acting until such clarification~~ the Agent's reasonable discretion, or ~~direction has been provided. Except as expressly set forth in the Loan Documents~~provide to a similar effect, ~~the Administrative Agent~~ it shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of in its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating instructions to the ~~maintenance of the Register), and~~ Agent withhold its ~~duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance~~ consent or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreementdiscretion in an unreasonable manner. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (Ing Prime Rate Trust)

Authorization and Action. ~~(a)~~ Each ~~Lender~~ Bank hereby ~~irrevocably~~ appoints ~~the entity named~~ ABN as ~~Administrative~~ Agent ~~in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and perform such duties under this Agreement and the other Loan Documents as are delegated to the ~~Administrative~~ Agent ~~under such agreements and to exercise~~ by the terms hereof or thereof, together with such powers as are reasonably incidental thereto. ~~Without limiting~~ The duties and obligations of the ~~foregoing, each Lender hereby authorizes the Administrative~~ Agent are strictly limited to ~~execute and deliver~~those expressly provided for herein, and ~~to perform its~~ no implied covenants, functions, responsibilities, duties, obligations ~~under, each of~~ or liabilities shall be read into this Agreement or otherwise exist against the ~~Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b)~~ Agent. As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (including enforcement of the Loan Documents or ~~collection~~collection of any amounts due thereunder), the ~~Administrative~~ Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the ~~Required Lenders (or such other number or percentage of the Lenders as shall be necessary~~Majority Banks, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Banks; provided, however, that except for action expressly required of the ~~Administrative~~ Agent hereunder, the Agent shall in all cases be fully justified in failing or refusing to act under any Loan Document unless it shall be indemnified to its satisfaction by the Banks against any and all liability and expense which may be incurred by reason of taking or continuing to take any such action, and that the Agent shall not in any event be required to take any action ~~that (i)~~ which exposes the ~~Administrative~~ Agent ~~in good faith believes exposes it~~ to liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in ~~this Agreement~~ any Loan Document shall, or shall ~~require~~ be construed to, constitute the ~~Administrative~~ Agent ~~to expend~~ a trustee or ~~risk its own funds~~ fiduciary for any Bank or ~~otherwise incur any financial liability in~~ the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) Issuing Bank. In performing its functions and duties ~~hereunder and under the other Loan Documents~~hereunder, the ~~Administrative~~ Agent ~~is acting~~ shall act solely ~~on behalf~~ as the agent of the ~~Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register),~~ Banks and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation towards or ~~duty~~ relationship of agency or ~~any other relationship as the agent, fiduciary or trustee of~~ trust with or for ~~any Lender or holder of any other obligation other than as expressly set forth herein and in~~ the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own accountBorrower. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Watkins Johnson Co)

Authorization and Action. ~~(a)~~ Each Lender hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to the ~~Administrative~~ Agent ~~under such agreements and to exercise~~ by the terms hereof, together with such powers as are reasonably incidental thereto. ~~Without limiting the foregoing, each Lender hereby authorizes the Administrative~~ The Agent ~~to execute and deliver, and to perform its obligations under, each~~ shall have no duties or responsibilities except those expressly set forth in this Agreement. The duties of the Agent shall be mechanical and administrative in nature; the Agent shall not have by reason of this Agreement a fiduciary relationship in respect of any Lender; and nothing in this Agreement or the other Loan Documents, expressed or implied, is intended to or shall be so construed as to impose upon the Agent any obligations in respect of this Agreement or the other Loan Documents ~~to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b)~~ except as expressly set forth herein. As to any matters not expressly provided for ~~herein and in the other Loan Documents (~~by this Agreement, including enforcement or ~~collection)~~collection of the Loans, the ~~Administrative~~ Agent shall not be required to exercise any discretion or take any ~~action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting)~~ action except upon the ~~written~~ instructions of ~~the Required Lenders (or such other number or percentage of the Lenders as shall be necessary~~Majority Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and any holders of any Note; ~~provided, however,~~ provided that the ~~Administrative~~ Agent shall not be required to take any action ~~that (i)~~ which exposes the ~~Administrative~~ Agent ~~in good faith believes exposes it~~ to personal liability ~~unless~~ or which is contrary to the ~~Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it~~ Loan Documents or applicable law. In the absence of instructions from the Majority Lenders, the Agent shall have authority (but no obligation), in its sole discretion, to take or not to take any action, unless this Agreement specifically requires the consent of all Lenders ~~with respect to~~ or the consent of Majority Lenders and any such action or ~~(ii) is contrary~~ failure to ~~this Agreement or any other Loan Document or applicable law, including any action that may~~ act shall be ~~in violation~~ binding on all Lenders and on all holders of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Notes. Each Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or each holder of any ~~other obligation other than as expressly set forth herein~~ Note shall execute and deliver such additional instruments, including powers of attorney in ~~the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use~~ favor of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable lawAgent, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or ~~advisable in order~~ desirable to ~~have~~ enable the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedingexercise its powers hereunder. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Loan Agreement (Cascade Corp)

Authorization and Action. ~~(a)~~ Each ~~Lender~~ of the Lenders hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative ~~Agent~~ Lender to take such ~~actions~~ action as ~~agent~~ the Administrative Lender on its behalf and to exercise such powers under this Agreement and the other Loan ~~Documents~~ Papers as are delegated to the Administrative ~~Agent under such agreements and to exercise~~ Lender by the terms hereof, together with such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein~~ by this Agreement and in the other Loan ~~Documents~~ Papers (including without limitation enforcement or ~~collection~~collection of the Notes), the Administrative ~~Agent~~ Lender shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the ~~Required~~ Majority Lenders (or ~~such other number or percentage of the Lenders as shall be necessary~~all Lenders, ~~pursuant to the terms in the Loan Documents~~if required under Section 9.1 hereof), ~~and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders; provided, however, that the Administrative ~~Agent~~ Lender shall not be required to take any action ~~that (i)~~ which exposes the Administrative ~~Agent in good faith believes exposes it~~ Lender to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to ~~this Agreement or~~ any ~~other~~ Loan ~~Document~~ Papers or applicable ~~law~~Law. The Administrative Lender agrees to give to each Lender notice of each notice given to it by the Companies pursuant to the terms of this Agreement, ~~including any action that may be in violation of the automatic stay under any requirement of law relating~~ and to ~~bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting~~ distribute to each applicable Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own like funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference all amounts delivered to the Administrative ~~Agent is not intended to connote any fiduciary duty~~ Lender by the Companies for the Ratable or ~~other implied (or express) obligations arising under agency doctrine~~ individual account of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own accountLender. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Page America Group Inc)

Authorization and Action. ~~(a)~~ Each Lender, respectively, hereby designates and appoints its related Lender ~~hereby irrevocably appoints the entity named~~ Agent to act as ~~Administrative Agent in the heading of this Agreement~~ its agent hereunder and ~~its successors and assigns to serve as the administrative agent~~ under ~~the Loan Documents~~each other Transaction Document, and ~~each~~ authorizes such Lender ~~authorizes the Administrative~~ Agent to take such actions as agent on its behalf and to exercise such powers ~~under~~ as are delegated to such Lender Agent by the terms of this Agreement and the other ~~Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise~~ Transaction Documents, together with such powers as are reasonably incidental thereto. ~~Without limiting the foregoing~~No Lender Agent shall have any duties or responsibilities, ~~each Lender hereby authorizes the Administrative Agent to execute and deliver~~except those expressly set forth herein or in any other Transaction Document, or any fiduciary relationship with its related Lender, and ~~to perform its~~ no implied covenants, functions, responsibilities, duties, obligations ~~under, each~~ or liabilities on the part of ~~the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under~~ such ~~Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative~~ Lender Agent shall ~~not~~ be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to read into this Agreement or any other ~~Loan~~ Transaction Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting otherwise exist for such Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been providedAgent. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other ~~Loan~~ Transaction Documents, ~~the Administrative~~ each Lender Agent ~~is acting~~ shall act solely ~~on behalf of the Lenders (except in limited circumstances expressly provided~~ as agent for ~~herein relating to the maintenance of the Register),~~ its related Lender and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume ~~and~~ nor shall ~~not~~ be deemed to have assumed any obligation or ~~duty~~ relationship of trust or agency with or for the Borrower, the Collateral Manager or any other ~~relationship as the agent~~Lender. No Lender Agent shall be required to take any action that exposes such Lender Agent to personal liability or that is contrary to this Agreement, ~~fiduciary or trustee of or for any Lender or holder of~~ any other ~~obligation other than as expressly set forth herein~~ Transaction Document or Applicable Law. The appointment and authority of each Lender Agent hereunder shall terminate upon the indefeasible payment in ~~the other Loan Documents, regardless~~ full of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to all Obligations. Each Lender Agent hereby authorizes the Administrative Agent ~~is not intended~~ to ~~connote~~ file any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty UCC financing statement deemed necessary by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of ~~any~~ such Lender ~~any plan~~ Agent (the terms of ~~reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any~~ which shall be binding on such Lender ~~or to authorize the Administrative~~ Agent ~~to vote in respect of the claim of any Lender in any such proceeding~~). (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Loan and Security Agreement (FS Investment CORP)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall 51 be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: : (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; ~~and~~ (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; 52 (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No None of any Co-Documentation Agents or the Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such ~~persons~~ Persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: 364 Day Term Loan Credit Agreement (Northwest Natural Gas Co)

Authorization and Action. ~~(a)~~ Each ~~Lender~~ of the Secured Parties hereby irrevocably appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other ~~Loan~~ Transaction Documents as are delegated to the Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers as are reasonably incidental thereto. ~~Without limiting~~ The Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein or in the ~~foregoing~~other Transaction Documents, ~~each Lender hereby authorizes~~ or any fiduciary relationship with any Secured Party, and no implied covenants, functions, responsibilities, duties or obligations or liabilities on the part of the Administrative Agent ~~to execute and deliver, and to perform its obligations under, each of the Loan Documents to which~~ shall be read into this Agreement or any other Transaction Document or otherwise exist for the Administrative ~~Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b)~~ Agent. As to any matters not expressly provided for ~~herein and in~~ by this Agreement or the other ~~Loan Documents (including enforcement or collection)~~Transaction Documents, the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each LenderMajority Banks; provided, however, that the Administrative Agent shall not be required to take any action ~~that (i)~~ which exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to this ~~Agreement~~ Agreement, the other Transaction Documents or Applicable Law. Each Secured Party agrees that in any ~~other Loan Document or applicable law, including any action that may be~~ instance in ~~violation of~~ which the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, Transaction Documents provide that the Administrative ~~Agent~~ Agent’s consent may ~~seek clarification or direction from the Required Lenders prior to~~ not be unreasonably withheld, provide for the exercise of ~~any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan Documents,~~ the Administrative ~~Agent~~ Agent’s reasonable discretion, or provide to a similar effect, it shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of in its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference instructions to the Administrative Agent ~~is not intended to connote any fiduciary duty~~ withhold its consent or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreementdiscretion in an unreasonable manner. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (Morgan Stanley Prime Income Trust)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any Borrower~~the Company, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.~~ Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender ~~or holder of any other obligation~~ other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No None of any Documentation Agent or the Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ any Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and ~~all~~ other ~~Obligations~~ obligations under the Loan Documents that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.09, ~~2.7~~ 2.10, 2.12, 2.14 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the ~~Obligations~~ obligations under the Loan Documents or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers or any Subsidiary~~Borrowers, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: 364 Day Credit Agreement (Crane Co /De/)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan ~~Documents~~Documents (including Section 9.12 hereof), the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~any Borrower~~the Company, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.~~ Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any ~~Lender~~ Lender, or any other holder of ~~any other obligation~~ Obligations other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No None of the Syndication Agent or any Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any ~~Federal~~federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ any Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other holder of Obligations to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, or the other holders of Obligations, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article VIII are solely for the benefit of the Administrative ~~Agent and~~ Agent, the Lenders, and, except solely to the extent of ~~any Borrower~~the Company’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article VIII, none of the ~~Borrowers~~ Company or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each holder of Obligations, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the provisions of this Article VIII.

Appears in 1 contract

Sources: 364 Day Credit Agreement (DENTSPLY SIRONA Inc.)

Authorization and Action. ~~(a)~~ Each Lender hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to the ~~Administrative~~ Agent ~~under such agreements and to exercise~~ by the terms hereof, together with such powers as are reasonably incidental thereto. ~~Without limiting the foregoing, each Lender hereby authorizes the Administrative~~ The Agent ~~to execute and deliver, and to perform its obligations under, each~~ shall have no duties or responsibilities except those expressly set forth in this Agreement. The duties of the Agent shall be mechanical and administrative in nature; the Agent shall not have by reason of this Agreement a fiduciary relationship in respect of any Lender; and nothing in this Agreement or the other Loan Documents, expressed or implied, is intended to or shall be so construed as to impose upon the Agent any obligations in respect of this Agreement or the other Loan Documents ~~to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b)~~ except as expressly set forth herein. As to any matters not expressly provided for ~~herein and in the other Loan Documents (~~by this Agreement, including enforcement or ~~collection)~~collection of the Loans, the ~~Administrative~~ Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or ~~refraining from acting~~refraining) upon the ~~written~~ instructions of the ~~Required Lenders (or such other number or percentage of the Lenders as shall be necessary~~Majority Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender; provided~~all Lenders and any holders of any Committed Loan Note or Bid Loan Note, ~~however,~~ PROVIDED that the ~~Administrative~~ Agent shall not be required to take any action ~~that (i)~~ which exposes the ~~Administrative~~ Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to ~~this Agreement~~ the Loan Documents or applicable law and PROVIDED, FURTHER, that without the consent of all Lenders, the Agent shall not change or modify the Total Commitment, any Lender's Commitment, the definition of "Majority Lenders", the conditions precedent set forth in Article III, the timing or rates of interest payments, the timing or amount of facility fees, the timing or amounts of principal payments due in respect of Loans, or the terms of the prohibition against any merger by Borrower or any ~~other Loan Document or applicable law~~Subsidiary pursuant to Section 6.02, ~~including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy~~and PROVIDED, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, furtherFURTHER, that the ~~Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise~~ terms of ~~any such instructed action~~ Section 2.07, Section 2.14(b) and ~~may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and~~ this Article VIII shall not be ~~liable for~~ amended without the ~~failure to disclose, any information relating to any Borrower, any Subsidiary or any Affiliate of any~~ prior written consent of the ~~foregoing that is communicated to or obtained by the Person serving as Administrative~~ Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (~~c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is~~ acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. ). In the absence of instructions from the Majority Lenders, the Agent shall have authority (~~d) The Administrative Agent may perform~~ but no obligation), in its sole discretion, to take or not to take any action, unless this Agreement specifically requires the consent of ~~its duties and exercise its rights and powers hereunder~~ the Lenders or ~~under any other Loan Document by or through any one or more sub-agents appointed by~~ the ~~Administrative Agent. The Administrative Agent~~ consent of the Majority Lenders and any such ~~sub-agent may perform any of their respective duties~~ action or failure to act shall be binding on all the Lenders and ~~exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 8 shall apply to any such sub-agent and to the Related Parties~~ on all holders of the ~~Administrative Agent~~ Committed Loan Notes and Bid Loan Notes. Each Lender and each holder of any Committed Loan Note or Bid Loan Note shall execute and deliver such ~~sub-agent and shall apply to their respective activities pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever~~ additional instruments, including powers of attorney in ~~such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit~~ favor of the ~~indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal~~Agent, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or ~~advisable in order~~ desirable to ~~have~~ enable the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedingexercise its powers hereunder. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Quarterly Report

Authorization and Action. (a) Each ~~Lender~~ of Group hereby ~~irrevocably~~ appoints the ~~entity named~~ Person identified on Annex A as ~~Administrative~~ its Co-Agent for purposes of the Transaction Documents and authorizes such Person in ~~the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender authorizes the Administrative Agent~~ such capacity to take such ~~actions as agent~~ action on its behalf under each Transaction Document and to exercise such powers ~~under this Agreement~~ hereunder and ~~the other Loan Documents~~ thereunder as are delegated to such Person, as a Co-Agent for such Group, by the ~~Administrative Agent under such agreements~~ terms hereof and ~~to exercise~~ thereof, together with such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage Each of the Lenders and Co-Agents hereby appoints SunTrust R▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. as ~~shall be necessary~~its Administrative Agent for purposes of the Transaction Documents and authorizes SunTrust R▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ~~pursuant~~ Inc. in such capacity to take such action on its behalf under each Transaction Document and to exercise such powers hereunder and thereunder as are delegated to SunTrust R▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., as Administrative Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. (c) Notwithstanding any provision to the ~~terms~~ contrary elsewhere in ~~the Loan Documents)~~this Agreement, and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation none of the ~~automatic stay under~~ Agents shall have any ~~requirement of law relating to bankruptcy~~duties or responsibilities, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as except those expressly set forth in the ~~Loan Documents~~Transaction Documents to which it is a party, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the ~~Administrative~~ part of such Agent shall ~~not~~ be read into any Transaction Document or otherwise exist against such Agent. (d) The provisions of this Article XII are solely for the benefit of the Agents and the Lenders, and neither of Borrower nor Collection Agent shall have any ~~duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any Subsidiary~~ rights as a third-party beneficiary or ~~any Affiliate of~~ otherwise under any of the ~~foregoing~~ provisions of this Article XII, except that ~~is communicated to or obtained by the Person serving as Administrative Agent or~~ this Article XII shall not affect any obligations which any of ~~its Affiliates in any capacity. Nothing in~~ the Agents or Lenders may have to either of Borrower or Collection Agent under the other provisions of this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to itAgreement. (ce) In performing its functions and duties ~~hereunder and under the other Loan Documents~~hereunder, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) each Co-Agent shall act solely as the ~~Administrative Agent~~ agent of the members of its Group and does not assume ~~and~~ nor shall ~~not~~ be deemed to have assumed any obligation or ~~duty~~ relationship of trust or ~~any other relationship as the agent, fiduciary or trustee of~~ agency with or for ~~any Lender~~ either Borrower or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Collection Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective ~~Affiliates~~successors and assigns, and (ii) the Administrative Agent shall act solely as the agent of the Secured Parties and does not assume nor shall be deemed to have assumed any ~~rights as a third party beneficiary under~~ obligation or relationship of trust or agency with or for either Borrower or Collection Agent or any ~~such provisions~~of their respective successors and assigns.

Appears in 1 contract

Sources: Loan Agreement (Arvinmeritor Inc)

Authorization and Action. (a) Each Lender Party (in its capacities as a Lender, the Issuing Bank and/or any Hedge Bank) hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender authorizes~~ the Administrative Agent as such and as "Trustee" under the Preferred Ship Mortgages and authorizes it to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents (including the Preferred Ship Mortgages) as are delegated to it by the ~~Administrative Agent under such agreements~~ terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. ~~Without limiting the foregoing, each Lender hereby authorizes the~~ The Administrative Agent ~~to execute~~ shall have no duties or responsibilities except those expressly set forth in this Agreement and ~~deliver, and to perform its obligations under, each of~~ the other Loan Documents ~~to which the Administrative Agent is~~ and shall not be a ~~party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents~~fiduciary for any Lender Party or Hedge Bank. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lender Parties and all holders of Notes and any action taken or failure to act pursuant thereto shall be binding on all the Lender Parties; ~~provided~~PROVIDED, ~~however~~HOWEVER, that the Administrative Agent shall not be required to take any action that ~~(i)~~ exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this ~~Agreement or~~ Agreement, any other Loan Document or applicable ~~law, including any~~ law and except for action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that expressly required by the Administrative Agent ~~may seek clarification~~ hereunder or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in under the Loan Documents, the Administrative Agent shall ~~not have any duty~~ in all cases be fully justified in failing or refusing to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability act hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) unless it shall be ~~entitled~~ indemnified to its satisfaction by the Lender Parties and ~~empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans~~ Hedge Banks against any and all ~~other Obligations~~ liability and expense that ~~are owing and unpaid and to file such other documents as~~ may be ~~necessary~~ incurred by it by reason of taking or ~~advisable in order~~ continuing to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on take any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedingaction. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Moran Transportation Co)

Authorization and Action. (a) Each Lender and the Issuing Bank hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent and collateral agent under the Loan Documents, and each Lender and the Issuing Bank authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Bank hereby grants to the Administrative Agent any required powers of attorney to execute any Collateral Agreement governed by the laws of such jurisdiction on such ▇▇▇▇▇▇’s or Issuing Bank’s behalf. Without limiting the foregoing, each Lender and the Issuing Bank hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each ~~Lender~~Lender and the Issuing Bank; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders and the Issuing Bank with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; ~~provided, further,~~ provided further that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ Holdings, the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "" ""

Appears in 1 contract

Sources: Credit Agreement (Fathom Digital Manufacturing Corp)

Appears in 1 contract

Sources: Credit Agreement (Heritage Media Corp)

Authorization and Action. ~~(a)~~ Each Lender hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes ~~the Administrative~~ Agent to take such ~~actions~~ action as ~~agent~~ Agent on its behalf and to exercise such powers hereunder and under ~~this Agreement and~~ the other Loan Documents as are delegated to Agent by the ~~Administrative Agent under such agreements and to exercise~~ terms hereof or thereunder, together with such powers as are reasonably incidental thereto. ~~Without limiting~~ Agent shall have no duties or responsibilities except those expressly set forth hereunder and in the ~~foregoing~~other Loan Documents. The duties of Agent shall be mechanical and administrative in nature; Agent shall not have by reason of any Loan Document a fiduciary relationship in respect of any Lender; and nothing in any Loan Document, ~~each Lender hereby authorizes the Administrative~~ expressed or implied, is intended to or shall be so construed as to impose upon Agent ~~to execute and deliver, and to perform its~~ any obligations ~~under, each~~ in respect of the Loan Documents ~~to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b)~~ except as expressly set forth herein. As to any matters not expressly provided for ~~herein and in the other Loan Documents (~~by this Agreement, including enforcement or ~~collection)~~collection of the Loans, ~~the Administrative~~ or other Obligations, Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or ~~refraining from acting~~refraining) upon the ~~written~~ instructions of ~~the Required Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms~~ acting in ~~the Loan Documents)~~agreement, ~~and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender; provided~~all Lenders, ~~however,~~ provided that ~~the Administrative~~ Agent shall not be required to take any action ~~that (i)~~ which exposes Agent to personal liability or which is contrary to the ~~Administrative~~ Loan Documents or Applicable Law. In the absence of instructions from Lenders, Agent shall have authority, in ~~good faith believes exposes it~~ its sole discretion, to ~~liability~~ take or not to take any action, unless this Agreement specifically requires the ~~Administrative Agent receives written indemnification~~ consent of Requisite Lenders and ~~is exculpated in a manner satisfactory to it from the Lenders with respect to~~ any such action or ~~(ii) is contrary~~ failure to ~~this Agreement or~~ act shall be binding on Lenders and on all holders of the Note. Each Lender and each holder of any ~~other Loan Document or applicable law~~Note shall execute and deliver such additional instruments, including ~~any action that~~ powers of attorney in favor of the Agent, as may be ~~in violation of the automatic stay under any requirement of law relating~~ necessary or desirable to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative enable Agent to ~~expend or risk~~ exercise its ~~own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or~~ powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Flow International Corp)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ the Trust, the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.~~ Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender ~~or holder of any other obligation~~ other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby; ~~and~~and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No Joint Lead Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any ~~Borrower~~ Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Trust, the Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions..

Appears in 1 contract

Sources: Credit Agreement (ARES INDUSTRIAL REAL ESTATE INCOME TRUST Inc.)

Authorization and Action. ~~(a)~~ Each ~~Lender~~ of the Lenders and Issuing Bank hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative ~~Agent~~ Lender to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other Loan ~~Documents~~ Papers as are delegated to the Administrative ~~Agent under such agreements and to exercise~~ Lender by the terms hereof, together with such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein~~ by this Agreement and in the other Loan ~~Documents~~ Papers (including without limitation enforcement or ~~collection~~collection of the Notes), the Administrative ~~Agent~~ Lender shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the ~~Required~~ Majority Lenders (or ~~such other number or percentage of the Lenders as shall be necessary~~all Lenders, ~~pursuant to the terms in the Loan Documents~~if required under Section 9.1 hereof), ~~and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders; provided, however, that the Administrative ~~Agent~~ Lender shall not be required to take any action ~~that (i)~~ which exposes the Administrative ~~Agent in good faith believes exposes it~~ Lender to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to any Loan Papers or Applicable Law. The Administrative Lender agrees to give to each Lender prompt notice of each notice given to it by the Company pursuant to the terms of this ~~Agreement or any other Loan Document or~~ Agreement, and to distribute promptly to each applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own like funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference all amounts delivered to the Administrative ~~Agent is not intended to connote any fiduciary duty~~ Lender by the Company for the ratable or ~~other implied (or express) obligations arising under agency doctrine~~ individual account of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own accountLender. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Petsmart Inc)

Authorization and Action. ~~(a)~~ Each Lender hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement ~~and the other Loan Documents~~ as are delegated to the ~~Administrative~~ Agent ~~under such agreements and to exercise~~ by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in the other Loan Documents~~ by this Agreement (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), the ~~Administrative~~ Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required Lenders (or such ~~other~~ greater number ~~or percentage~~ of ~~the~~ Lenders as ~~shall~~ may be ~~necessary,~~ required pursuant to ~~the terms in the Loan Documents~~Section 8.01), ~~and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Notes; provided, however, that the ~~Administrative~~ Agent shall not be required to take any action that ~~(i)~~ exposes the ~~Administrative~~ Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ applicable law~~, including any action that may be in violation~~ . The Agent agrees to give to each Lender prompt notice of each notice given to it by Borrower pursuant to the ~~automatic stay under any requirement~~ terms of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative this Agreement. The Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of execute any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the ~~transactions contemplated hereby; and (ii) nothing in this Agreement~~ other Loan Documents by or ~~any Loan Document~~ through agents or attorneys-in-fact and shall ~~require~~ be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall not be responsible for the ~~Administrative Agent to account to any Lender for any sum~~ negligence or ~~the profit element~~ misconduct of any ~~sum received~~ agents or attorneys-in-fact selected by it with reasonable care. Notwithstanding the ~~Administrative~~ foregoing, unless and until a replacement Agent shall have been appointed and shall have accepted such appointment in accordance with Section 7.06, the Agent shall remain liable for ~~its own account. (d) The Administrative Agent may perform any~~ the performance of all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Senior Unsecured Interim Loan Agreement (Tribune Co)

Authorization and Action. (a) Each ~~Lender hereby irrevocably~~ Purchaser appoints CapEx, L.P. as its agent (in such capacity, "Agent"), for the ~~entity named as Administrative Agent in the heading~~ purposes of ~~this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents~~collecting payments, ~~and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and~~ electing to exercise ~~such powers~~ the rights of the Purchasers under this Agreement and the other ~~Loan~~ Transaction Documents as ~~are delegated~~ herein and therein provided, and holding and enforcing those security documents referred to in the ~~Administrative~~ Debentures (and hereinafter referred to) as the "Security" in accordance with the terms of this Agreement, and distributing any funds received either as payments from the Company or on realization of the Security in accordance with this Agreement. For such purposes, each Purchaser authorizes Agent ~~under~~ on behalf of such ~~agreements~~ Purchaser to take such action and to exercise such rights, powers and discretions as are expressly delegated to it under this Agreement and the other Transaction Documents and on the terms hereof or thereof together with such other rights, powers and discretions as are reasonably incidental thereto~~. Without limiting~~ ; provided always, however, that, without the ~~foregoing~~consent of both Purchasers, ~~each Lender hereby authorizes~~ Agent shall not: (i) effect or agree to any change in the ~~Administrative Agent~~ interest rate, payment dates, maturity date or conversion rights under the Debentures; or (ii) fail to ~~execute and deliver, and to perform its obligations under, each~~ elect under Section 7.1 of the ~~Loan Documents~~ Debentures to ~~which~~ accelerate repayment of all indebtedness owing thereunder upon the ~~Administrative~~ occurrence of a Default Event and proceed to enforce all security held by Agent ~~is a party, to exercise all rights, powers and remedies that the Administrative~~ for such indebtedness. Agent may ~~have under such Loan Documents. (b) As to~~ perform any ~~matters not expressly provided for herein and in the other Loan Documents (including enforcement~~ of its duties hereunder or ~~collection)~~thereunder by or through its agents, ~~the Administrative~~ officers or employees. Agent shall not be required to exercise any right, power or discretion or take any ~~action~~action as to any matters not expressly provided for by this Agreement or the other Transaction Documents (including, ~~but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions~~ without limitation, enforcement of the ~~Required Lenders (or such other number or percentage~~ collection of ~~the Lenders as shall be necessary, pursuant~~ any amounts owing to the ~~terms in the Loan Documents~~Purchasers hereunder)~~, and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative~~ . Agent shall not be required to exercise any right, power or discretion or to take any action ~~that (i) the Administrative~~ which exposes Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ risk thereof or which is contrary to this ~~Agreement or any~~ Agreement, the other ~~Loan Document~~ Transaction Documents or applicable law. The duties of Agent, ~~including any action that may~~ as agent, shall be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative~~ Agent ~~are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and~~ shall not ~~be deemed to have assumed any obligation or duty or any other relationship as the agent~~have, ~~fiduciary or trustee~~ by reason of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or ~~any Loan Document shall require~~ the ~~Administrative Agent to account to any Lender for any sum or the profit element~~ other Transaction Documents, a fiduciary relationship in respect of ~~any sum received by the Administrative Agent for its own account~~either Purchaser. (db) ~~The Administrative~~ Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 8 shall ~~apply to any such sub-agent and to the Related Parties~~ only act on behalf of the ~~Administrative Agent~~ Purchasers in dealings and ~~any such sub-agent~~ communications with the Company as set out in this Agreement, and shall ~~apply~~ be the only person to their respective activities pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacityso act, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents except as may be ~~necessary or advisable~~ otherwise agreed in ~~order to have~~ writing between the ~~claims~~ parties hereto. The Company and the Subsidiaries may rely upon the grant and delegation of authority provided in this section 8 from each of the ~~Lenders and the Administrative~~ Purchasers to Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedingwithout further inquiry. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Debenture and Warrant Purchase Agreement (Neptune Society Inc/Fl)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents(i) The Company, Sheffield and each ~~Lender~~ Bank Investor hereby appoints and authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other ~~Loan~~ Transaction Documents as are delegated to the ~~Administrative~~ Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers as are reasonably incidental thereto. ~~Without~~ In furtherance, and without limiting the generality, of the foregoing, the Company, Sheffield and each ~~Lender~~ Bank Investor hereby ~~authorizes~~ appoints the ~~Administrative~~ Agent as its agent to execute and ~~deliver~~deliver all further instruments and documents, and take all further action that the Agent may deem necessary or appropriate or that the Company, Sheffield or a Bank Investor may reasonably request in order to ~~perform its obligations under~~perfect, ~~each~~ protect or more fully evidence the interests transferred or to be transferred from time to time by the Transferor hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the ~~Loan Documents~~ Receivables now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. The Majority Investors may direct the Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the ~~Administrative~~ actions specifically delegated to the Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection)hereunder, the ~~Administrative~~ Agent shall not be required to ~~exercise any discretion or~~ take any ~~action~~such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written instructions~~ direction of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each LenderMajority Investors; provided, however, that ~~the Administrative~~ Agent shall not be required to take any action ~~that (i)~~ hereunder if the ~~Administrative Agent~~ taking of such action, in ~~good faith believes exposes it to liability unless~~ the ~~Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from~~ reasonable determination of the ~~Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law~~Agent, ~~including any action that may~~ shall be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, ~~and that such term is used as a matter~~ rule or regulation or contrary to any provision of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or ~~any Loan Document~~ shall ~~require~~ expose the ~~Administrative~~ Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or ~~thereunder in such capacity, but all such persons shall have~~ otherwise. Upon the ~~benefit of~~ occurrence and during the ~~indemnities provided for hereunder. (f) In case of the pendency~~ continuance of any ~~proceeding with respect to any Borrower under any Federal, state~~ Termination Event or ~~foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect~~Potential Termination Event, the ~~Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative~~ Agent shall ~~have made any demand on such Borrower) shall be entitled and empowered~~ take no action hereunder (~~but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all~~ other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.than

Appears in 1 contract

Sources: Transfer and Administration Agreement (Worldcom Inc /Ga/)

Authorization and Action. (a) Each Lender Party (in its capacities as a Lender and a Special L/C Issuing Bank (if applicable)) hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Obligations of the Loan Parties), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lender Parties and all holders of Special L/C Notes; provided, however, that the Administrative Agent shall not be required to take any action that ~~(i)~~ exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (db) The Administrative Agent may ~~perform~~ execute any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder at the direction of the First Lien Collateral Agent) by or through agents, employees or attorneys-in-fact and shall ~~incur no liability hereunder~~ be entitled to advice of counsel and other consultants or ~~thereunder in~~ experts concerning all matters pertaining to such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the duties. The Administrative Agent shall ~~have made any demand on such Borrower) shall~~ not be ~~entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim~~ responsible for the ~~whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary~~ negligence or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf misconduct of any ~~Lender any plan of reorganization~~agent, ~~arrangement, adjustment or composition affecting~~ attorney-in-fact that it selects in accordance with the ~~Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The~~ foregoing provisions of this Section ~~8 are solely for~~ 7.01(b) in the ~~benefit~~ absence of the Administrative ~~Agent and the Lenders, and, except solely to the extent of any Borrower~~Agent’s ~~rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers~~ gross negligence or ~~any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions~~willful misconduct.

Appears in 1 contract

Sources: Special Letter of Credit Facility Agreement (Dynegy Inc /Il/)

Authorization and Action. (a) Each ~~Lender~~ of the Lenders and hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such actions ~~as agent~~ on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers ~~under this Agreement and the other Loan Documents~~ as are delegated to the Administrative Agent ~~under~~ by the terms of the Loan Documents, together with such ~~agreements~~ actions and ~~to exercise such~~ powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) ~~As to~~ The Administrative Agent shall not have any ~~matters not~~ duties or obligations except those expressly ~~provided for herein and~~ set forth in the ~~other~~ Loan ~~Documents~~ Documents. Without limiting the generality of the foregoing, (~~including enforcement or collection),~~ i) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (ii) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected~~ in ~~so acting or refraining from acting) upon the written instructions of~~ writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, pursuant to~~ necessary under the ~~terms~~ circumstances as provided in ~~the Loan Documents~~Section 10.01), ~~and, unless~~ and ~~until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that~~ (iiii) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except 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 ~~any Borrower~~Holdings, ~~any Subsidiary~~ PBE, Parent or ~~any Affiliate of~~ any of the ~~foregoing~~ Group Members that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. ~~Nothing~~ The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in ~~this Agreement~~ Section 10.01) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall ~~require~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ~~expend~~ ascertain or ~~risk its own funds~~ inquire into (i) any statement, warranty or ~~otherwise incur~~ representation made in or in connection with any ~~financial liability~~ 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 of ~~its duties hereunder~~ the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the ~~exercise~~ validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of ~~its rights~~ Liens on the Collateral or ~~powers if it shall have reasonable grounds for believing that repayment~~ the existence of ~~such funds~~ the Collateral or ~~adequate indemnity against such risk~~ (vi) the satisfaction of any condition set forth in Article III or ~~liability is not reasonably assured~~ elsewhere in any Loan Document, other than to itconfirm receipt of items expressly required to be delivered to the Administrative Agent. (c) In ~~performing~~ its ~~functions and duties hereunder and under the other Loan Documents~~capacity, the Administrative Agent is ~~acting~~ a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the UCC. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the ~~Lenders (except~~ Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in ~~limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations~~ favor of the Administrative Agent ~~are commercial in nature and not to invest in the general performance or operations~~ on behalf of the ~~Borrower~~Secured Parties. ~~Without limiting~~ The Lenders hereby authorize the ~~generality~~ Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 10.02(d), (ii) as permitted by, but only in accordance with, the terms of the ~~foregoing:~~ applicable Loan Document or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent ~~does not assume and~~ shall not be ~~deemed~~ required to ~~have assumed~~ execute any ~~obligation or duty or any other relationship as the agent~~such document on terms which, ~~fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and~~ in the ~~other Loan Documents~~Administrative Agent’s opinion, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require would expose the Administrative Agent to ~~account~~ liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of Parent or any Loan Party) all interests retained Parent or any Loan Party, including (without limitation) the proceeds of the sale, all of which shall continue to ~~any Lender for any sum or~~ constitute part of the ~~profit element of any sum received by the Administrative Agent for its own account~~Collateral. (d) The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any ~~of their respective~~ and all its duties and exercise ~~their respective~~ its rights and powers through their respective Related ~~Parties~~Persons. The exculpatory provisions of this ~~Section 8~~ Article IX shall apply to any such sub-agent and to the Related ~~Parties~~ Persons of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities ~~pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever~~ in ~~such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have~~ connection with the ~~benefit~~ syndication of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable Facility as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents well as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity activities as ~~the~~ Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (PLBY Group, Inc.)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; ~~provided,~~ provided however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; ~~provided,~~ provided further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any ~~Lender or holder of any other obligation~~ Lender, other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby~~; and~~; (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No None of any Syndication Agent, any Documentation Agent, any Bookrunner or any Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to ~~any~~ the Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the ~~Lenders,~~ Lenders to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative ~~Agent~~ Agent, and the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Revolving Credit Agreement (Rocket Companies, Inc.)

Authorization and Action. ~~(a)~~ Each ~~Lender~~ of the Banks hereby irrevocably appoints GFB as the ~~entity named as~~ Administrative Agent ~~in the heading of~~ under this Agreement and ~~its successors~~ the other Loan Documents and ~~assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to ~~take~~ act on such ~~actions as agent on its~~ appointing Bank's behalf and to exercise such powers under this Agreement and ~~the~~ all other Loan Documents as are specifically delegated to or required of the Administrative Agent ~~under such agreements and to exercise such powers as are~~ by their terms, together with all reasonably incidental ~~thereto~~powers. ~~Without limiting the foregoing, each Lender hereby authorizes~~ If the Administrative Agent ~~to execute and deliver, and to perform its obligations under, each~~ (in such capacity) (a) receives any material writing from either Obligor (including any report or statement required by any of the Loan ~~Documents~~ Documents), (b) receives any default notice from any Bank alleging or relating to ~~which~~ any Default by either Obligor or (c) gives any Default notice to either Obligor pursuant to the terms of any of the Loan Documents, then in each such instance, the Administrative Agent ~~is a party,~~ shall promptly forward copies of such material writing or Default notice to ~~exercise all rights, powers and remedies that~~ the ~~Administrative Agent may have under such Loan Documents. (b)~~ other Banks. As to any ~~matters~~ matter not expressly provided for ~~herein~~ by this Agreement and ~~in the~~ all other Loan Documents (including enforcement or ~~collection~~collection of any Warehouse Note and foreclosure on any Collateral for any or all of either Obligor's present or future Obligations under the Loan Documents), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ joint instructions of ~~the Required Lenders (or such other number or percentage~~ all of the ~~Lenders as shall be necessary~~affected Banks, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Banks; provided~~, however~~, that the Administrative Agent shall not be required to take any action that it reasonably believes may (i1) ~~the Administrative Agent in good faith believes exposes~~ expose it to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or (ii2) is be contrary to this ~~Agreement or~~ Agreement, any other Loan ~~Document~~ Documents or applicable ~~law, including any action that~~ requirements of Law. The Administrative Agent may (but shall not be ~~in violation of the automatic stay~~ under any ~~requirement~~ obligation to) propose to take action or actions under this Agreement and the other Loan Documents in a notice to the other affected Banks; unless otherwise directed by the other affected Banks within ten (10) Business Days after the date of ~~law relating to bankruptcy~~such notice, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may ~~seek clarification~~ (but shall not be obligated to) take the action or ~~direction from the Required Lenders prior to the exercise of any~~ actions proposed in such ~~instructed action~~ notice and ~~may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving~~ fully protected in so acting as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it ~~shall have reasonable grounds for believing that repayment of~~ had received instructions to take such ~~funds~~ action or ~~adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under~~ actions from the other ~~Loan Documents~~affected Banks; provided that without the other affected Banks' approval, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and Agent: shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and (A) declare in ~~the other Loan Documents, regardless of whether~~ writing that a Default ~~or an Event of Default~~ that has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan ~~Document and shall incur no liability hereunder~~ Documents has been waived or ~~thereunder in such capacity~~cured, ~~but all such persons shall~~ (B) consent to any merger or consolidation of either Obligor with or into another Person that would have the ~~benefit~~ effect described in clause (a)(2) or (b)(2), as applicable, of this Agreement's definition of "Change of Control", or (C) declare the maturity of any Warehouse Note accelerated, foreclose or direct Collateral Agent to foreclose on any Collateral or exercise any of the ~~indemnities provided for hereunder.~~ Banks' other material remedies after the occurrence of any Default unless such actions set forth in this clause (fC) ~~In case~~ are (i) reasonably susceptible of being rescinded without materially and adversely affecting the other Banks or any of the ~~pendency of any proceeding with respect~~ Collateral if the other affected Banks should elect to ~~any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect,~~ have the Administrative Agent ~~(irrespective of whether the principal of any Loan shall then be due and payable as herein expressed~~ rescind them or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event actions that ~~the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as~~ the Administrative Agent, ~~under~~ acting reasonably in light of the ~~Loan Documents~~ circumstances then prevailing and known to the Administrative Agent, shall deem necessary or appropriate to take on an urgent basis in order to protect or preserve Collateral or to protect the rights or interests of the Banks. Each Bank hereby (~~including under Section 9.5). Nothing contained herein shall be deemed to authorize the~~ i) authorizes Administrative Agent to ~~authorize or consent~~ execute and deliver the Warehouse Pledge Agreement and to ~~or accept or adopt on behalf~~ appoint Bank One, Texas, N.A., to act as collateral agent and representative (within the meaning of ~~any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect~~ Section 9.105(13) of the ~~claim of any Lender in any such proceeding. (g~~UCC) ~~The provisions of this Section 8 are solely~~ for each Bank under the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.Warehouse Pledge

Appears in 1 contract

Sources: Credit Agreement (Firstcity Financial Corp)

Authorization and Action. (a) Each ~~Lender hereby irrevocably appoints~~ Secured Party by its acceptance of the ~~entity named as Administrative Agent in the heading~~ benefits of this Agreement shall be deemed to have appointed and ~~its successors and assigns to serve as~~ authorized the ~~administrative agent under the Loan Documents, and each Lender authorizes the Administrative Agent~~ Security Trustee to take such ~~actions~~ action as ~~agent~~ trustee on ~~its~~ behalf of the Secured Parties and to exercise such powers and discretion under this ~~Agreement~~ 34 Agreement, the FAA Security Documents and the other ~~Loan~~ Related Documents as are specifically delegated to the ~~Administrative Agent under such agreements~~ Security Trustee by the terms of, and to ~~exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes~~ take instructions and directions from the Administrative Agent ~~to execute~~ pursuant to, this Agreement, the FAA Security Documents and ~~deliver~~of the other Related Documents, and no implied duties and covenants shall be deemed to ~~perform its obligations under~~arise against the Security Trustee. For the avoidance of doubt, each Secured Party by its acceptance of the ~~Loan Documents~~ benefits of this Agreement hereby requests and instructs the Security Trustee to enter into all Assigned Lease-related documents and instruments which it is requested by any Grantor to enter into on this date and as may arise from time to time for the ~~Administrative Agent is a party, to exercise all~~ purpose of establishing and maintaining its security interest for itself and for the benefit of the other Secured Parties in respect of any Assigned Lease and each Grantor and Secured Party hereby agrees that the Security Trustee shall be afforded the same rights, ~~powers~~ protections, immunities and ~~remedies that~~ indemnities afforded to it hereunder, mutatis mutandis, in connection with the ~~Administrative Agent may have under such Loan Documents~~same (including, without limitation, any applicable Lease document or Lessee consent). (b) As The Security Trustee accepts such appointment and agrees to ~~any matters not expressly provided for herein~~ perform the same but only upon the terms of this Agreement and the Indenture and agrees to receive and disburse all moneys received by it in accordance with the ~~other Loan Documents (including enforcement or collection),~~ terms of this Agreement and the ~~Administrative Agent~~ Indenture. The Security Trustee in its individual capacity shall not be ~~required to exercise~~ answerable or accountable under any ~~discretion~~ circumstances, except for its own willful misconduct or ~~take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders~~ gross negligence (or ~~such other number or percentage of the Lenders as shall be necessary, pursuant to the terms~~ simple negligence in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (ihandling of funds) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation breach of any ~~requirement~~ of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action its representations and ~~may refrain from acting until such clarification or direction has been provided. Except as expressly~~ warranties set forth in ~~the Loan Documents, the Administrative Agent shall not have any duty to disclose~~this Agreement, and the Security Trustee shall not be liable for ~~the failure to disclose,~~ any ~~information relating to~~ action or inaction of any ~~Borrower, any Subsidiary~~ Grantor or any ~~Affiliate of~~ other parties to any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to itRelated Documents. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Security Trust Agreement (Willis Lease Finance Corp)

Authorization and Action. (a) Each ~~Lender~~ Lender, on behalf of itself and any of its Affiliates that are Secured Parties and each Issuing Bank hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent and collateral agent under the Loan ~~Documents,~~ Documents and each Lender and each Issuing Bank authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. ~~Without limiting~~ In addition, to the ~~foregoing~~extent required under the laws of any jurisdiction other than within the United States, each Lender and each Issuing Bank hereby ~~authorizes~~ grants to the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents.85 (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each ~~Lender~~Lender and each Issuing Bank; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders and the Issuing Banks with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any other Loan Party, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing Banks (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.~~ Without limiting the generality of the foregoing: : (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any ~~Lender~~ Lender, Issuing Bank, any other Secured Party or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.86 (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and non- appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No The Arranger shall not have any obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any ~~Borrower~~ Loan Party under any Federal, state or foreign ~~bankruptcy, insolvency, receivership~~ Insolvency Law or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such Borrower~~the Borrowers) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: : (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the ~~Loans~~ Loans, LC Disbursements and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the ~~Lenders~~ Lenders, the Issuing Banks and the Administrative Agent (including any claim under Sections ~~2.3~~2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~9.03) allowed in such judicial proceeding; ~~and~~ and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each ~~Lender~~ Lender, each Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, ~~to pay to~~ the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations Issuing Banks or the ~~rights of any Lender or~~ other Secured Parties, to ~~authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.~~87 (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative ~~Agent~~ Agent, the Lenders and the ~~Lenders~~Issuing Banks, and, except solely to the extent of ~~any Borrower’s~~ the Borrowers’ rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.

Appears in 1 contract

Sources: Credit Agreement (Lawson Products Inc/New/De/)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents, The Company and each ~~Lender~~ Bank Investor hereby appoints and authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other ~~Loan~~ Transaction Documents as are delegated to the ~~Administrative~~ Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers as are reasonably incidental thereto. ~~Without~~ In furtherance, and without limiting the generality, of the foregoing, the Company and each ~~Lender~~ Bank Investor hereby ~~authorizes~~ appoints the ~~Administrative~~ Agent as its agent to execute and ~~deliver~~deliver all further instruments and documents, and take all further action that the Agent may deem necessary or appropriate or that the Company or a Bank Investor may reasonably request in order to ~~perform its obligations under~~perfect, ~~each~~ protect or more fully evidence the interests transferred or to be transferred from time to time by the Transferor hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the ~~Loan Documents~~ Receivables now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated herein above. The Company and the Majority Investors may direct the Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the ~~Administrative~~ actions specifically delegated to the Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection)hereunder, the ~~Administrative~~ Agent shall not be required to ~~exercise any discretion or~~ take any ~~action~~such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written instructions~~ direction of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each LenderMajority Investors; provided, however, that ~~the Administrative~~ Agent shall not be required to take any action ~~that (i)~~ hereunder if the ~~Administrative Agent~~ taking of such action, in ~~good faith believes exposes it to liability unless~~ the ~~Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from~~ reasonable determination of the ~~Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law~~Agent, ~~including any action that may~~ shall be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, ~~and that such term is used as a matter~~ rule or regulation or contrary to any provision of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or ~~any Loan Document~~ shall ~~require~~ expose the ~~Administrative~~ Agent to ~~account~~ liability hereunder or otherwise. Upon the occurrence and during the continuance of any Termination Event or Potential Termination Event, the Agent shall take no action hereunder (other than ministerial actions or such actions as are specifically provided for herein) without the prior consent of the Majority Investors (which consent shall not be unreasonably withheld or delayed). The Agent shall not, without the prior written consent of all Bank Investors, agree to (i) amend, modify or waive any ~~Lender for~~ provision of this Agreement in any ~~sum~~ way which would (A) reduce or impair Collections or the ~~profit element~~ payment of interest or fees payable hereunder to the Bank Investors or delay the scheduled dates for payment of such amounts, (B) increase the Servicing Fee (other than as permitted pursuant to Section 6.2(b)), (C) modify any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Agreement or the Receivables Purchase Agreement relating to the timing of payments required to be made by the Transferor or the Seller or the application of the proceeds of such payments, (D) permit the appointment of any Person (other than the Agent) as successor Collection Agent, (E) release any property from the lien provided by this Agreement (other than as expressly contemplated herein) or (F) extend or permit the extension of the Commitment Termination Date without the consent of each Bank Investor. The Agent shall ~~apply~~ not agree to any amendment of this Agreement which increases the dollar amount of a Bank Investor's Commitment without the prior consent of such ~~sub-agent~~ Bank Investor. In addition, the Agent shall not agree to any amendment of this Agreement not specifically described in the two preceding sentences without the consent of the related Majority Investors (which consent shall not be unreasonably withheld or delayed). "Majority Investors" shall mean, at any time, the Agent and those Bank Investors which hold Commitments aggregating in excess of 66 and 2/3% of the Facility Limit as of such date. In the event the Agent requests the Company's or a Bank Investor's consent pursuant to the ~~Related Parties~~ foregoing provisions and the Agent does not receive a consent (either positive or negative) from the Company or such Bank Investor within 10 Business Days of the ~~Administrative Agent~~ Company's or Bank Investor's receipt of such request, then the Company or such Bank Investor (and ~~any such sub-agent and~~ its percentage interest hereunder) shall ~~apply to their respective activities pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever~~ be disregarded in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of determining whether the ~~principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative~~ Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall obtained sufficient consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedinghereunder. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Transfer and Administration Agreement (Metris Companies Inc)

Authorization and Action. (a) Each ~~Lender~~ of the Lenders, on behalf of itself and any of its Affiliates that are holders of Secured Obligations, and each Issuing Bank hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such actions ~~as agent~~ on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers ~~under this Agreement and the other Loan Documents~~ as are delegated to the Administrative Agent ~~under~~ by the terms hereof and of the other Loan Documents, together with such ~~agreements~~ actions and ~~to exercise such~~ powers as are reasonably incidental thereto. ~~Without limiting~~ In furtherance of the foregoing, ~~each Lender hereby authorizes~~ to the ~~Administrative Agent to execute and deliver, and to perform its obligations under~~extent required under the laws of any jurisdiction other than the United States of America, each of the ~~Loan Documents to which the Administrative Agent is a party~~Lenders, ~~to exercise all rights, powers~~ on behalf of itself and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates ~~in any capacity. Nothing in this Agreement shall require~~ that are Secured Parties, hereby grants to the Administrative Agent any required powers of attorney to ~~expend or risk its own funds or otherwise incur~~ execute any ~~financial liability in~~ Collateral Document governed by the ~~performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment~~ laws of such ~~funds~~ jurisdiction on such Lender’s or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in natureAffiliate’s behalf. The ~~motivations~~ provisions of this Article are solely for the benefit of the Administrative Agent ~~are commercial in nature~~ and ~~not to invest in~~ the ~~general performance or operations of~~ Lenders, and neither the ~~Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or~~ Borrowers nor any other ~~relationship~~ Obligor shall have rights as ~~the agent, fiduciary or trustee of or for any Lender or holder~~ a third party beneficiary of any ~~other obligation other than as expressly set forth herein and in the other Loan Documents, regardless~~ of ~~whether a Default or an Event of Default has occurred and is continuing (and it~~ such provisions. It is understood and agreed that the use of the term “agent” as used herein or in any other Loan Documents (or any similar term) ~~herein or in any other Loan Document~~ with reference to the Administrative Agent is not intended to connote any fiduciary ~~duty~~ or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, ~~and that~~ such term is used as a matter of market ~~custom~~ custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~); additionally, each Lender agrees that it will not assert any claim against~~ . (b) The bank serving as the Administrative Agent ~~based on an alleged breach~~ 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 such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of ~~fiduciary duty by~~ business with any Obligor or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. (c) In relation to Collateral which is subject to a Swiss Security Document, the Administrative Agent has caused the ABL Administrative Agent to, subject to and in ~~connection~~ accordance with ~~this Agreement~~ the provisions of the Intercreditor Agreement: (i) hold and administer any non-accessory Collateral (nicht-akzessorische Sicherheit) governed by Swiss law as fiduciary (treuhänderisch) in its own name but for the ~~transactions contemplated hereby~~benefit of the Secured Parties; and (ii) ~~nothing~~ hold and administer any accessory Collateral (akzessorische Sicherheit) governed by Swiss law as direct representative (direkter Stellvertreter) in ~~this Agreement or any Loan Document shall require~~ the ~~Administrative Agent to account to any Lender for any sum or~~ name and on behalf of the ~~profit element of any sum received by the Administrative Agent for its own account~~Secured Parties. (d) ~~The~~ Each Secured Party has appointed the ABL Administrative Agent ~~may perform any of~~ as its ~~duties~~ direct representative (direkter Stellvertreter) and ~~exercise its rights and powers hereunder~~ authorized the ABL Administrative Agent (whether or ~~under any other Loan Document~~ not by or through ~~any one~~ employees or ~~more sub-agents appointed by~~ agents) to: (i) exercise such rights, remedies, powers and discretions as are specifically delegated to or conferred upon the ~~Administrative Agent. The~~ ABL Administrative Agent under the relevant Swiss Security Documents together with such powers and discretions as are reasonably incidental thereto; (ii) take such action on its behalf as may from time to time be authorized under or in accordance with the relevant Swiss Security Documents; and (iii) accept, enter into and execute as its direct representative (direkter Stellvertreter) any pledge or other creation of any accessory security right granted in favor of such ~~sub-agent may perform~~ Secured Party in connection with the Loan Documents under Swiss law and to agree to and execute in its name and on its behalf as its direct representative (direkter Stellvertreter) any amendments, confirmations and/or alterations to any Swiss Security Document which creates a pledge or any other accessory security right (akzessorische Sicherheit) including the release or confirmation of ~~their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory~~ release of such Collateral, all subject to the provisions of ~~this Section 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 pursuant to this~~ Intercreditor Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit With effect as of the ~~indemnities provided for hereunder. (f) In case~~ resignation of the ~~pendency of any proceeding with respect~~ ABL Administrative Agent as Original Foreign Collateral Agent and in relation to ~~any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect~~Collateral which is subject to a Swiss Security Document, the Administrative Agent ~~(irrespective~~ shall cause the Foreign Collateral Agent to, subject to and in accordance with the provisions of ~~whether~~ the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwiseIntercreditor Agreement: (i) ~~to file~~ hold and ~~prove a claim~~ administer any non-accessory Collateral (nicht-akzessorische Sicherheit) governed by Swiss law as fiduciary (treuhänderisch) in its own name but for the ~~whole amount~~ benefit of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceedingSecured Parties; and (ii) hold and administer any accessory Collateral (akzessorische Sicherheit) governed by Swiss law as direct representative (direkter Stellvertreter) in the name and on behalf of the Secured Parties. (f) With effect as of the resignation of the ABL Administrative Agent as Original Foreign Collateral Agent, each Secured Party hereby appoints the Foreign Collateral Agent as its direct representative (direkter Stellvertreter) and authorizes the Foreign Collateral Agent (whether or not by or through employees or agents) to: (i) exercise such rights, remedies, powers and discretions as are specifically delegated to ~~collect~~ or conferred upon the Foreign Collateral Agent under the relevant Swiss Security Documents together with such powers and ~~receive~~ discretions as are reasonably incidental thereto; (ii) take such action on its behalf as may from time to time be authorized under or in accordance with the relevant Swiss Security Documents; and (iii) accept, enter into and execute as its direct representative (direkter Stellvertreter) any ~~monies~~ pledge or other ~~property payable or deliverable on~~ creation of any ~~such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official~~ accessory security right granted in ~~any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making~~ favor of such ~~payments directly to the Lenders, to pay to the Administrative Agent any amount due to it,~~ Secured Party in ~~its capacity as the Administrative Agent, under~~ connection with the Loan Documents ~~(including~~ under ~~Section 9.5). Nothing contained herein shall be deemed~~ Swiss law and to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant agree to and execute in its name and on its behalf as its direct representative (direkter Stellvertreter) any amendments, confirmations and/or alterations to any Swiss Security Document which creates a pledge or any other accessory security right (akzessorische Sicherheit) including the release or confirmation of release of such Collateral, all subject to the ~~conditions set forth in this Section 8, none~~ provisions of the ~~Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions~~Intercreditor Agreement.

Appears in 1 contract

Sources: Lc Credit Agreement and u.s. Security Agreement (Weatherford International PLC)

Authorization and Action. (a) Each Lender Party (in its capacities as a Lender and a Synthetic Issuing Bank (if applicable)) hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Obligations of the Loan Parties), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lender Parties and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action that ~~(i)~~ exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (db) The Administrative Agent may ~~perform~~ execute any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the First Lien Collateral Documents or of exercising any rights and remedies thereunder at the direction of the First Lien Collateral Agent) by or through agents, employees or attorneys-in-fact and shall ~~incur no liability hereunder~~ be entitled to advice of counsel and other consultants or ~~thereunder in~~ experts concerning all matters pertaining to such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the duties. The Administrative Agent shall ~~have made any demand on such Borrower) shall~~ not be ~~entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim~~ responsible for the ~~whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary~~ negligence or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf misconduct of any ~~Lender any plan of reorganization~~agent, ~~arrangement, adjustment~~ employee or ~~composition affecting~~ attorney-in-fact that it selects in accordance with the ~~Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The~~ foregoing provisions of this Section ~~8 are solely for~~ 7.01(b) in the ~~benefit~~ absence of the Administrative ~~Agent and the Lenders, and, except solely to the extent of any Borrower~~Agent’s ~~rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers~~ gross negligence or ~~any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions~~willful misconduct.

Appears in 1 contract

Sources: First Lien Credit and Guaranty Agreement (US Power Generating CO)

Authorization and Action. Each of CapMAC, the Administrative Agent, Triple-A, the Surety and the L/C Bank (acollectively with their respective successors and assigns, the "Secured Creditors") ~~Each Lender~~ hereby ~~irrevocably~~ designates and appoints ~~the entity named~~ CapMAC as ~~Administrative Agent in the heading of~~ "Collateral Agent" under this Credit Agreement and ~~its successors and assigns to serve as~~ each of the ~~administrative agent under the Loan~~ other Facility Documents, and ~~each Lender~~ authorizes the ~~Administrative~~ Collateral Agent to take such actions as agent on its behalf and to exercise such powers ~~under this Agreement and the other Loan Documents~~ as are delegated to the ~~Administrative~~ Collateral Agent ~~under such agreements and to exercise~~ by the terms of the Facility Documents, together with such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative The Collateral Agent shall not ~~be required to exercise~~ have any ~~discretion~~ duties or ~~take~~ responsibilities, except those expressly set forth in the Facility Documents. In addition, the Collateral Agent shall not have any ~~action~~fiduciary relationship with any Person, ~~but~~ and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of the Collateral Agent shall be ~~required to~~ read into the Facility Documents or otherwise exist for the Collateral Agent. The provisions of this Article XIII govern the relationship between the Collateral Agent and the Secured Creditors and are solely for the benefit of the Collateral Agent and the Secured Creditors, and none of the Borrower, the Servicer, FAC or FCI (collectively, the "Other Parties") shall have any rights as a third-party beneficiary or otherwise under any of the provisions of this Article XIII. In performing its functions and duties under the Facility Documents, the Collateral Agent shall act ~~or to refrain from acting (~~solely as agent for the Secured Creditors and does not assume nor shall be ~~fully protected in so acting~~ deemed to have assumed any obligation or ~~refraining from acting) upon the written instructions~~ relationship of trust or agency with or for any of the ~~Required Lenders (~~Other Parties or ~~such other number~~ any of their respective successors or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative assigns. The Collateral Agent shall not be required to take any action ~~that (i)~~ which exposes the ~~Administrative~~ Collateral Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to ~~this Agreement or any other Loan Document or applicable law, including any action that may be in violation of~~ the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate terms of any of the ~~foregoing that is communicated to~~ Facility Documents or ~~obtained by~~ applicable law. The appointment and authority of the ~~Person serving as Administrative~~ Collateral Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the ~~other Loan Documents,~~ Facility Documents shall terminate on the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own accountCollection Date. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Fairfield Communities Inc)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the ~~heading of this Agreement~~ definition thereof and its successors and assigns to serve as the administrative agent under the Margin Loan ~~Documents,~~ Documentation and each Lender authorizes ~~the~~ Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Margin Loan ~~Documents~~ Documentation as are delegated to ~~the~~ Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Each Lender hereby irrevocably appoints the entity named as Calculation Agent in the definition thereof and its successors and assigns to serve as the calculation agent under the Margin Loan Documentation. Without limiting the foregoing, each Lender hereby authorizes ~~the~~ Administrative Agent and Calculation Agent to execute and deliver, and to perform its respective obligations under, each of the Margin Loan ~~Documents~~ Documentation to which ~~the~~ Administrative Agent or Calculation Agent, as applicable, is a party, and to exercise all rights, powers and remedies that ~~the~~ Administrative Agent or Calculation Agent, as applicable, may have under such Margin Loan ~~Documents~~Documentation. (b) As to any matters not expressly provided for herein and in the other Margin Loan ~~Documents~~ Documentation (including enforcement or collection), ~~the Administrative~~ each Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Margin Loan ~~Documents~~Documentation), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that ~~the Administrative~~ each Agent shall not be required to take any action that (i) ~~the Administrative~~ such Agent in good faith believes exposes it to liability unless ~~the Administrative~~ such Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Margin Loan ~~Document~~ Documentation or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that ~~the Administrative~~ each Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Margin Loan ~~Documents~~Documentation, ~~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 ~~any~~ Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as ~~Administrative~~ Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require ~~the Administrative~~ any Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Margin Loan ~~Documents~~Documentation, ~~the Administrative~~ each Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.~~ Without limiting the generality of the foregoing: (i) ~~the Administrative~~ each Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender ~~or holder of any other obligation~~ other than as expressly set forth herein and in the other Margin Loan ~~Documents~~Documentation, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Margin Loan ~~Document~~ Documentation with reference to ~~the Administrative~~ any Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against ~~the Administrative~~ any Agent based on an alleged breach of fiduciary duty by ~~the Administrative~~ such Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby; (ii) where any Agent is required or deemed to act as a trustee in respect of any Collateral over which a security interest has been created pursuant to any Margin Loan Documentation expressed to be governed by the laws of the state of New York, or is required or deemed to hold any Collateral “on trust” pursuant to the foregoing, the obligations and liabilities of such Agent to the secured parties in its capacity as trustee shall be excluded to the fullest extent permitted by applicable law; and (iiiii) nothing in this Agreement or any Margin Loan ~~Document~~ Documentation shall require ~~the Administrative~~ any Agent to account to any Lender for any sum or the profit element of any sum received by ~~the Administrative~~ any Agent for its own account.; (d) ~~The Administrative~~ Each Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Margin Loan ~~Document~~ Documentation by or through any one or more sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of ~~the Administrative~~ any Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. Each Agent shall not be responsible 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 Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any ~~Borrower~~ Loan Party, any LP or GP Parent under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, ~~the~~ Administrative Agent (irrespective of whether the principal of any ~~Loan~~ Advance shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether ~~the~~ Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the ~~Loans~~ Advances and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the ~~Administrative Agent~~ Agents (including any claim under Sections ~~2.3~~2.03, ~~2.7~~ 2.04, 2.07, 2.08 and ~~2.10~~9.04) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other secured party to make such payments to ~~the~~ Administrative Agent and, in the event that ~~the~~ Administrative Agent shall consent to the making of such payments directly to the ~~Lenders~~Lenders or the other Secured Parties, to pay to ~~the Administrative~~ each Agent any amount due to it, in its capacity as ~~the Administrative~~ Agent, under the Margin Loan ~~Documents~~ Documentation (including under Section ~~9.5~~9.04). Nothing contained herein shall be deemed to authorize ~~the~~ Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize ~~the~~ Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (gf) The provisions of this ~~Section 8~~ Article are solely for the benefit of the ~~Administrative Agent~~ Agents and the ~~Lenders,~~ Lenders and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party (as defined in the Security Agreements), whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral provided under the Margin Loan Documentation, to have agreed to the provisions of this Article.

Appears in 1 contract

Sources: Margin Loan Agreement (Valor Buyer LP)

Authorization and Action. (a) Each Lender and each Issuer hereby ~~irrevocably~~ appoints JPMorgan as the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents,~~ hereunder and each Lender and each Issuer authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to ~~the~~ such Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender and each Issuer hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations ~~under,~~ under each of the Loan Documents to which ~~the~~ such Administrative Agent is a party, to exercise all rights, powers and remedies that ~~the~~ such Administrative Agent may have under any such Loan Documents and, in the case of the Collateral Documents, to act as agent for the Lenders, Issuers and the other Secured Parties under such Collateral Documents. Each reference to the Administrative Agent in this Article X shall be deemed to apply to the Administrative Agent acting in its capacity as collateral agent under the Collateral Documents. (b) As to any matters not expressly provided for ~~herein~~ by this Agreement and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the ~~Required Lenders (or such other number or percentage of the Lenders as shall be necessary~~Requisite Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon all Lenders and each ~~Lender~~Issuer; ~~provided, however,~~ provided that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to personal liability unless the Administrative Agent receives ~~written~~ an indemnification ~~and is exculpated in a manner~~ satisfactory to it from the Lenders and the Issuers with respect to such action or (ii) is contrary to this Agreement or applicable law. The Administrative Agent agrees to give to each applicable Lender and each applicable Issuer prompt notice of each notice given to it by any Loan Party pursuant to the terms of this Agreement or the other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders ~~(except in limited circumstances expressly provided for herein relating to~~ and the ~~maintenance of the Register),~~ Issuers and its duties are entirely ~~mechanical and~~ administrative in nature. The ~~motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the~~ Administrative Agent does not assume and shall not be deemed to have assumed any obligation ~~or duty~~ other than as expressly set forth herein and in the other Loan Documents or any other relationship as the agent, fiduciary or trustee of or for any ~~Lender~~ Lender, Issuer or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) Obligation. The Administrative Agent may perform any of its duties ~~and exercise its rights and powers hereunder or~~ under any ~~other~~ Loan Document by or through ~~any one~~ its agents or ~~more sub-agents appointed by~~ employees. In the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 8 shall apply to any such sub-agent and to the Related Parties of event the Administrative Agent ~~and~~ calculates the aggregate amount outstanding under Letters of Credit upon the request of any Lender or Issuer, the Administrative Agent may make such ~~sub-agent and shall apply to their respective activities pursuant to this Agreement~~calculation based on the face amount of all outstanding Letters of Credit. (ed) ~~No Arranger~~ The Joint Lead Arrangers shall have no obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity~~, but all such persons shall have the benefit of the indemnities provided for hereunder~~. (fe) ~~In case of the pendency of any proceeding with respect to any Borrower under any Federal~~Each Lender, ~~state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due~~ Issuer and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwiseJoint Lead Arranger hereby: (i) irrevocably constitutes, authorizes and appoints JPMorgan (and the individuals through which it may be represented), or any other Person appointed Administrative Agent pursuant to Section 10.6 (and the individuals through which it may be represented), its true and lawful attorney-in-fact to execute, accept, register at the relevant registries and deliver any Loan Document, including one or more Collateral Documents, as such attorney-in-fact may deem necessary or desirable, any amendments thereto, and all post-effective amendments, extensions, supplements and cancellations to such Loan Documents, in such form(s) as such attorney-in-fact may approve, and to file ~~and prove a claim for~~ the ~~whole amount of the principal and interest owing and unpaid in respect of the Loans~~ same and all other ~~Obligations that are owing and unpaid~~ documents in relation thereto with the applicable Governmental Authorities or such other Person as required by any Requirement of Law and to ~~file such~~ hold on behalf of each present and future Secured Party security granted by a Loan Party; provided that in no event shall this clause (e) be deemed to authorize or permit JPMorgan or any other ~~documents~~ Person to execute this Agreement or any amendment hereto as ~~may be necessary~~ attorney-in-fact of any Lender or ~~advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and~~Issuer, (ii) grants to ~~collect~~ such attorney-in-fact full power and ~~receive any monies or other property payable or deliverable on any~~ authority to do and perform each and every act necessary to be done to ensure that such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making Collateral Documents comply with Requirements of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceedingLaw. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Agilon Health, Inc.)

Authorization and Action. ~~(a)~~ Each ~~Lender~~ of the Secure Parties hereby irrevocably appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the ~~Administrative~~ Program Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other ~~Loan~~ Program Documents as are delegated to the ~~Administrative~~ Program Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers as are reasonably incidental thereto. ~~Without limiting~~ The Program Agent shall not have any duties or responsibilities, except those expressly set forth herein or in the ~~foregoing~~other Program Documents, ~~each Lender hereby authorizes the Administrative Agent to execute and deliver~~or any fiduciary relationship with any Secured Party, and ~~to perform its~~ no implied covenants, functions, responsibilities, duties or obligations ~~under, each~~ or liabilities on the part of the ~~Loan Documents to which~~ Program Agent shall be read into this Agreement or any other Program Document or otherwise exist for the ~~Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b)~~ Program Agent. As to any matters not expressly provided for ~~herein and in~~ by this Agreement or the other ~~Loan Documents (including enforcement or collection)~~Program Documents, the ~~Administrative~~ Program Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the ~~Required~~ Lenders (or ~~such other number or percentage of~~ the ~~Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender~~Secondary Lenders; provided, however, that the ~~Administrative~~ Program Agent shall not be required to take any action ~~that (i)~~ which exposes the ~~Administrative~~ Program Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to this ~~Agreement~~ Agreement, the other Program Documents or Applicable Law. Each Secured Party agrees that in any ~~other Loan Document or applicable law, including any action that may be~~ instance in ~~violation of~~ which the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, Program Documents provide that the ~~Administrative Agent~~ Program Agent's consent may ~~seek clarification or direction from the Required Lenders prior to~~ not be unreasonably withheld, provide for the exercise of ~~any such instructed action and may refrain from acting until such clarification~~ the Program Agent's reasonable discretion, or ~~direction has been provided. Except as expressly set forth in the Loan Documents~~provide to a similar effect, ~~the Administrative Agent~~ it shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of in its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating instructions to the ~~maintenance of the Register), and~~ Program Agent withhold its ~~duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance~~ consent or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreementdiscretion in an unreasonable manner. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (Invesco Prime Income Trust)

Authorization and Action. (a) Each Lender and the Issuing Bank hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent and collateral agent under the Loan Documents, and each Lender and the Issuing Bank authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Bank hereby grants to the Administrative Agent any required powers of attorney to execute any Collateral Agreement governed by the laws of such jurisdiction on such ▇▇▇▇▇▇’s or Issuing Bank’s behalf. Without limiting the foregoing, each Lender and the Issuing Bank hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each ~~Lender~~Lender and the Issuing Bank; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "" "" IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "" ""

Appears in 1 contract

Sources: Credit Agreement (Fathom Digital Manufacturing Corp)

Authorization and Action. (a) Each ~~Lender~~ Bank hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents, and each ~~Lender~~ Bank authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each ~~Lender~~ Bank hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required ~~Lenders~~ Banks (or such other number or percentage of the ~~Lenders~~ Banks as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each ~~Lender~~Bank; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the ~~Lenders~~ Banks with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting ~~Lender~~ Bank in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required ~~Lenders~~ Banks prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the ~~Lenders~~ Banks (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the ~~Borrower~~Borrowers. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any ~~Lender~~ Bank or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each ~~Lender~~ Bank agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any ~~Lender~~ Bank for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related ~~Parties~~Persons. The exculpatory provisions of this ~~Section 8~~ Article VII shall apply to any such sub-agent and to the Related ~~Parties~~ Persons of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities to the extent provided for hereunder. (f) In To the extent permitted by applicable law, in case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the ~~Lenders~~ Banks and the Administrative Agent (including any claim under Sections ~~2.3~~2.8, ~~2.7~~ 2.9, 2.12 and ~~2.10~~2.15) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each ~~Lender~~ Bank to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the ~~Lenders~~Banks, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~8.3). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any ~~Lender~~ Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any ~~Lender~~ Bank or to authorize the Administrative Agent to vote in respect of the claim of any ~~Lender~~ Bank in any such proceeding. (g) The provisions of this ~~Section 8~~ Article VII are solely for the benefit of the Administrative Agent and the ~~Lenders~~Banks, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article VII, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (BlackRock Series Fund II, Inc.)

Authorization and Action. (a) Each Lender and the Issuing Bank hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent and collateral agent under the Loan Documents, and each Lender and the Issuing Bank authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Bank hereby grants to the Administrative Agent any required powers of attorney to execute any Collateral Agreement governed by the laws of such jurisdiction on such ▇▇▇▇▇▇’s or Issuing Bank’s behalf. Without limiting the foregoing, each Lender and the Issuing Bank hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each ~~Lender~~Lender and the Issuing Bank; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders and the Issuing Bank with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; ~~provided, further,~~ provided further that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ Holdings, the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing Bank (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature~~. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower~~. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any ~~Lender~~ Lender, the Issuing Bank or any other holder of ~~any other obligation~~ Secured Obligations other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender and each Issuing Bank agrees (and each other Secured Party will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed) that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this ~~Agreement and~~ Agreement, any other Loan Document and/or the transactions contemplated ~~hereby~~hereby or thereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any ~~Lender~~ Lender, any Issuing Bank or any other Secured Party for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No Neither the Arranger nor the Documentation Agent shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but ~~all~~ each such ~~persons~~ Person shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any ~~Borrower~~ Loan Party under any ~~Federal~~federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any reimbursement obligation in respect of any L/C Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such Borrower~~any Loan Party) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the ~~Loans~~ Loans, L/C Disbursements and all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the ~~Lenders~~ Lenders, the Issuing Bank and the Administrative Agent (including any claim under Sections ~~2.3~~2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~9.05) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each ~~Lender~~ Lender, the Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Issuing Bank or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.05). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the rights of any Lender or the Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or the Issuing Bank in any such proceeding. (g) The provisions of this ~~Section 8~~ Article VIII are solely for the benefit of the Administrative ~~Agent~~ Agent, the Lenders and the ~~Lenders~~Issuing Bank, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article VIII, none of Holdings, the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed to the provisions of this Article VIII.

Appears in 1 contract

Sources: Credit Agreement (Fathom Digital Manufacturing Corp)

Authorization and Action. (a) Each Lender (in its capacity as a Lender and an Issuing Bank, as applicable) hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement ~~and the other Loan Documents~~ as are delegated to the Administrative Agent ~~under such agreements and to exercise~~ by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in the other Loan Documents~~ by this Agreement (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action that ~~(i)~~ exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ to applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent ~~and~~ agrees to give to each Lender prompt notice of each notice given to it by any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 8 shall apply to any such sub-agent and Borrower pursuant to the ~~Related Parties~~ terms of ~~the Administrative Agent and any such sub-agent and shall apply to their respective activities pursuant to~~ this Agreement. (eb) ~~No Arranger~~ None of the Syndication Agent, Bank or America, N.A., as co-documentation agent, BNP Paribas, as co-documentation agent, or Commerzbank AG, as co-documentation agent, shall have ~~obligations~~ any powers or ~~duties whatsoever in such capacity~~ discretion under this Agreement or any Note other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect than those afforded to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, it in its capacity as ~~the Administrative Agent~~a Lender, ~~under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any~~ and each Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, hereby acknowledges that none of the ~~Borrowers~~ Syndication Agent, Bank or America, N.A., as co-documentation agent, BNP Paribas, as co-documentation agent, or Commerzbank AG, as co-documentation agent, have any liabilities under this Agreement or any ~~Subsidiary, or any of their respective Affiliates, shall have any rights~~ Note other than those assumed by it in its capacity as ~~a third party beneficiary under any such provisions~~Lender.

Appears in 1 contract

Sources: Credit Agreement (Black & Decker Corp)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the ~~administrative agent~~ Administrative Agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than within the United States, each Lender hereby grants to the Administrative Agent any required powers of attorney to execute and enforce any Security Document governed by the laws of such jurisdiction on such ▇▇▇▇▇▇’s behalf. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification ~~and is exculpated in a manner~~ satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature~~. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower~~. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible for the bad faith, 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 the Administrative Agent acted with bad faith, gross negligence or willful misconduct in the selection of such sub-agent. (e) ~~No Arranger shall have obligations or duties whatsoever~~ Whenever reference is made in ~~such capacity under~~ this Agreement or any Loan Document to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or to any amendment, waiver or other modification of this Agreement to be executed (or not to be executed) by the Administrative Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion or rights or remedies to be made (or not to be made) by the Administrative Agent, it is understood that in all cases the Administrative Agent shall be acting, giving, withholding, suffering, omitting, making or otherwise undertaking and exercising the same (or shall not be undertaking and exercising the same) as directed in writing by the Required Lenders or such other number or percentage of Lenders as may be expressly specified in this Agreement or the other Loan ~~Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have~~ Documents. This provision is intended solely for the benefit of the ~~indemnities provided for hereunder~~Administrative Agent and such Person’s respective successors and permitted assigns and is not intended to, and will not, entitle the other parties hereto to any defense, claim or counterclaims under or in relation to any Loan Documents, or confer any rights or benefits on any party hereto. (f) In case of the pendency of any proceeding with respect to any ~~Borrower~~ Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Term Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.13, ~~2.7~~ 2.14, 2.16, 2.18 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the ~~Lenders~~Lenders or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of ~~any~~ the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.

Appears in 1 contract

Sources: Credit Agreement (SatixFy Communications Ltd.)

Appears in 1 contract

Sources: Credit Agreement (Allegheny Energy, Inc)

Authorization and Action. (a) Each ~~Lender~~ Bank hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the ~~Administrative Agent~~ Agents to take such ~~actions~~ action as ~~agent~~ agents on its behalf and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to the ~~Administrative Agent under such agreements and to exercise~~ Agents by the terms hereof, together with such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in the other Loan Documents~~ by this Agreement (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Obligations), the ~~Administrative Agent~~ Agents shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the ~~Required Lenders~~ Majority Banks (or, as applicable, Banks with the necessary aggregate Applicable Pro Rata Shares or Voting Pro Rata Shares, as the case may be, with discretion over such ~~other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents~~matters), ~~and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Banks and all holders of Notes; provided, however, that ~~the Administrative~~ no Agent shall ~~not~~ be required to take any action ~~that (i) the Administrative~~ which exposes such Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to this Agreement or ~~any other Loan Document or~~ applicable law~~, including any action that may be in violation~~ . (b) The provisions of this Article XIV are solely for the benefit of the ~~automatic stay under~~ Agents and the Banks, and neither the Company nor any ~~requirement~~ Subsidiary of ~~law relating~~ the Company (including, without limitation, the other Multicurrency Borrowers) shall have any rights to ~~bankruptcy, insolvency~~ rely on or ~~reorganization or relief~~ enforce any of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except provisions hereof (other than 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacitySection 14.07). Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties ~~hereunder and~~ under this Agreement, each Agent shall act solely as agent, as the ~~other Loan Documents~~case may be, ~~the Administrative Agent is acting solely on behalf~~ of the ~~Lenders (except in limited circumstances expressly provided for herein relating to~~ Banks and/or the ~~maintenance of the Register)~~Issuing Banks, as applicable, and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation toward or ~~duty~~ relationship of agency or trust with or for the Company or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use Subsidiary of the ~~term “agent” (or any similar term) herein or in any other Loan Document with reference to~~ Company. Each of the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent Agents may perform any of its duties ~~and exercise its rights and powers hereunder~~ hereunder, or under ~~any other Loan Document~~ the Credit Documents, by or through ~~any one~~ its agents or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreementemployees. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Global Credit Agreement (Comdisco Inc)

Authorization and Action. (a) Each Lender ~~hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents,~~ and each ~~Lender~~ Swap Provider hereby appoints and authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), the Administrative Agent and the Security Trustee shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Notes; provided, however, that the Administrative Agent and the Security Trustee shall not be required to take any action that ~~(i) the Administrative Agent in good faith believes~~ exposes it to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this ~~Agreement or~~ Agreement, any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent ~~and any such sub-agent may perform any~~ agrees to give to each Lender prompt notice of ~~their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions~~ each notice given to it by the Borrower pursuant to the terms of this ~~Section 8 shall apply to any such sub-agent and to~~ Agreement. For the ~~Related Parties~~ avoidance of the Administrative Agent and any such sub-agent and shall apply to their respective activities pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effectdoubt, the ~~Administrative Agent (irrespective~~ terms of ~~whether the principal of any Loan~~ Section 8.01 hereof shall ~~then be due~~ govern and ~~payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (~~control all discretionary acts, including but not ~~obligated) by intervention in such proceeding or otherwise: (i)~~ limited to ~~file~~ consents, waivers, and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3amendments, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the ~~Lenders, and, except solely~~ Security Trustee relating to the ~~extent~~ Loan Documents. (b) The provisions of ~~any Borrower’s rights to consent pursuant to~~ this Article VII shall apply to, and ~~subject~~ enure to the ~~conditions set forth in this Section 8~~benefit of, ~~none of~~ and be binding on, the ~~Borrowers or any Subsidiary~~Security Trustee as though it were named herein to the same extent such provisions apply to, ~~or any of their respective Affiliates~~and enure to the benefit of, ~~shall have any rights as a third party beneficiary under any such provisions~~and are binding on, the Administrative Agent.

Appears in 1 contract

Sources: Senior Secured Credit Agreement (Star Bulk Carriers Corp.)

Authorization and Action. (a) Each Lender hereby ~~irrevocably~~ appoints Citibank as the ~~entity named as~~ Administrative Agent in under and for the ~~heading~~ purposes of ~~this Agreement and its successors and assigns to serve as the administrative agent under the~~ each Loan ~~Documents, and each~~ Document. Each Lender authorizes the Administrative Agent to take such ~~actions~~ action as ~~agent~~ Administrative Agent on its behalf and to exercise such powers and discretion under this Agreement ~~and the other Loan Documents~~ as are delegated to the Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in the other Loan Documents~~ by this Agreement (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Advances and the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required Lenders (or ~~such other number or percentage of~~ all the Lenders ~~as shall be necessary~~if applicable, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of the Advances and the Notes; provided, however, that the Administrative Agent shall not be required to take any action that ~~(i)~~ exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent ~~and any such sub-agent may perform any~~ agrees to give to each Lender prompt notice of ~~their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 8 shall apply~~ each notice given to ~~any such sub-agent and~~ it by either Borrower pursuant to the ~~Related Parties~~ terms of ~~the Administrative Agent and any such sub-agent and shall apply to their respective activities pursuant to~~ this Agreement. (eb) ~~No Arranger shall have obligations or duties whatsoever~~ Anything in ~~such capacity under~~ this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8contrary notwithstanding, none of the ~~Borrowers~~ Persons identified on the cover page hereof as “Co-Syndication Agents”, “Co-Documentation Agents”, “Sole Lead Arranger” or “Sole Book Runner” shall have, in their capacities as such, any ~~Subsidiary,~~ responsibilities or ~~any of their respective Affiliates, shall have any rights as a third party beneficiary~~ liabilities under ~~any such provisions~~or in connection with this Agreement.

Appears in 1 contract

Sources: Revolving Credit Agreement (Ambac Financial Group Inc)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the ~~Loan Documents,~~ Credit Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other ~~Loan~~ Credit Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the ~~Loan~~ Credit Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such ~~Loan~~ Credit Documents. (b) As to any matters not expressly provided for herein and in the other ~~Loan~~ Credit Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the ~~Loan~~ Credit Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification ~~and is exculpated in a manner~~ satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other ~~Loan~~ Credit Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the ~~Loan~~ Credit 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative ~~Agent~~ Agent, or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other ~~Loan~~ Credit Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature~~. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower~~. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any ~~Lender or holder of any other obligation~~ Lender, other than as expressly set forth herein and in the other ~~Loan~~ Credit Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other ~~Loan~~ Credit Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any ~~Loan~~ Credit Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account.; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other ~~Loan~~ Credit Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No None of any Co-Syndication Agent or any Lead Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other ~~Loan~~ Credit Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or other Obligation of the Borrower under the Credit Documents shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such~~ the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) otherwise to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the ~~Lenders~~Lenders or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative ~~Agent,~~ Agent under the ~~Loan~~ Credit Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations of such Borrower under the Credit Documents or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of ~~any~~ each Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral provided under the Credit Documents, to have agreed to the provisions of this Article.

Appears in 1 contract

Sources: Credit Agreement (Jones Financial Companies LLLP)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any~~ the Lead Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.~~ Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of ~~any other obligation~~ Obligations other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement ~~and~~ and/or the transactions contemplated hereby; (ii) [reserved]; and (iiiii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article VIII shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No None of any Co-Documentation Agent, any Co-Syndication Agent, the Sustainability Structuring Agent, any Bookrunner or any Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any ~~Borrower~~ Loan Party under any ~~Federal~~federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such Borrower~~any Loan Party) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other holder of the Obligations to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the ~~Lenders~~Lenders or any other holder of the Obligations, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article VIII are solely for the benefit of the Administrative ~~Agent and~~ Agent, the Lenders, and, except solely to the extent of ~~any~~ the Lead Borrower’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article VIII, none of the ~~Borrowers~~ Lead Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each holder of the Obligations, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the provisions of this Article VIII.

Appears in 1 contract

Sources: Credit Agreement (ESAB Corp)

Authorization and Action. ~~(a)~~ Each Lender hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement ~~and the other Loan Documents~~ as are delegated to the Administrative Agent ~~under such agreements and to exercise~~ by the terms hereof, together with such powers as are reasonably incidental thereto. ~~Without limiting the foregoing,~~ The Administrative Agent will furnish to each Lender ~~hereby authorizes~~ a copy of any certificate or notice furnished to the Administrative Agent by a Borrower indicating the existence of a Default or an Event of Default. The Administrative Agent may in its discretion give any Borrower notice of any Default of which it has knowledge and, if requested to ~~execute and deliver~~do so by the Required Lenders, ~~and to perform its obligations under, each of the Loan Documents to which~~ the Administrative Agent ~~is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under~~ shall give any Borrower notice of such ~~Loan Documents. (b)~~ Default. As to any matters not expressly provided for ~~herein and in the other Loan Documents~~ by this Agreement (~~including~~ including, without limitation, enforcement or ~~collection~~collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action ~~that (i) the Administrative Agent in good faith believes~~ which exposes it to liability unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to ~~expend~~ personal liability or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability which is ~~not reasonably assured~~ contrary to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law~~, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each~~ . Each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require hereby authorizes the Administrative Agent to ~~account~~ take delivery of the Notes and other documents from time to time executed and delivered hereunder by any ~~Lender for any sum or~~ Borrower and accepts the ~~profit element of any sum received~~ benefit of, and agrees to be bound by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to terms of, this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Revolving Credit Agreement (American Management Systems Inc)

Authorization and Action. ~~(a)~~ Each Lender hereby ~~irrevocably~~ appoints Rabobank as Agent and authorizes the ~~entity named as Administrative~~ Agent ~~in the heading of this Agreement and its successors and assigns~~ to ~~serve as the administrative agent under~~ execute the Loan ~~Documents,~~ Documents and ~~each Lender authorizes the Administrative Agent~~ to take such ~~actions~~ action as agent on its behalf and to exercise such powers and perform such duties under this Agreement and the other Loan Documents as are delegated to the ~~Administrative~~ Agent ~~under such agreements and to exercise~~ by the terms hereof or thereof, together with such powers as are reasonably incidental thereto. ~~Without limiting~~ The duties and obligations of the ~~foregoing, each Lender hereby authorizes the Administrative~~ Agent are strictly limited to ~~execute and deliver~~those expressly provided for herein, and ~~to perform its~~ no implied covenants, functions, responsibilities, duties, obligations ~~under, each of~~ or liabilities shall be read into this Agreement or otherwise exist against the ~~Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b)~~ Agent. As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (including enforcement of the Loan Documents or ~~collection~~collection of any amounts due thereunder), the ~~Administrative~~ Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the ~~Required Lenders (or such other number or percentage of the Lenders as shall be necessary~~Majority Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders; provided, however, that except for action expressly required of the ~~Administrative~~ Agent hereunder, the Agent shall in all cases be fully justified in failing or refusing to act under any Loan Document unless it shall be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by reason of taking or continuing to take any such action, and that the Agent shall not in any event be required to take any action ~~that (i)~~ which exposes the ~~Administrative~~ Agent ~~in good faith believes exposes it~~ to liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ which is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in ~~this Agreement~~ any Loan Document shall, or shall ~~require~~ be construed to, constitute the ~~Administrative~~ Agent ~~to expend~~ a trustee or ~~risk its own funds~~ fiduciary for any Lender or ~~otherwise incur any financial liability in~~ the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) Issuing Lender. In performing its functions and duties ~~hereunder and under the other Loan Documents~~hereunder, the ~~Administrative~~ Agent ~~is acting~~ shall act solely ~~on behalf~~ as the agent of the Lenders ~~(except in limited circumstances expressly provided for herein relating to the maintenance of the Register),~~ and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation towards or ~~duty~~ relationship of agency or trust with or for the Borrower or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Guarantor. Each Lender agrees that ~~it will not assert any claim against~~ the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled ~~and empowered (but not obligated)~~ to rely on any action purportedly taken by ~~intervention in such proceeding or otherwise: (i) to file and prove a claim~~ the Agent on behalf of the Lenders. Each Lender agrees that the Borrower shall have no liability for the ~~whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and~~ Agent’s failure to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to properly distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, ~~to pay to~~ as their interests may appear, any funds received by the ~~Administrative~~ Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Chalone Wine Group LTD)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents, The Company and each ~~Lender~~ Bank Investor hereby appoints and authorizes the ~~Administrative~~ Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers under this Agreement and the other ~~Loan~~ Transaction Documents as are delegated to the ~~Administrative~~ Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers as are reasonably incidental thereto. ~~Without~~ In furtherance, and without limiting the generality, of the foregoing, the Company and each ~~Lender~~ Bank Investor hereby ~~authorizes~~ appoints the ~~Administrative~~ Agent as its agent to execute and ~~deliver~~deliver all further instruments and documents, and take all further action that the Agent may deem necessary or appropriate or that the Company or a Bank Investor may reasonably request in order to ~~perform its obligations under~~perfect, ~~each~~ protect or more fully evidence the interests transferred or to be transferred from time to time by the Transferor hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Agent as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the ~~Loan Documents~~ Receivables now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove. The Company and the Majority Investors may direct the Agent to take any such incidental action hereunder. With respect to other actions which are incidental to the ~~Administrative~~ actions specifically delegated to the Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection)hereunder, the ~~Administrative~~ Agent shall not be required to ~~exercise any discretion or~~ take any ~~action~~such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written instructions~~ direction of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each LenderMajority Investors; provided, however, that ~~the Administrative~~ Agent shall not be required to take any action ~~that (i)~~ hereunder if the ~~Administrative Agent~~ taking of such action, in ~~good faith believes exposes it to liability unless~~ the ~~Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from~~ reasonable determination of the ~~Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law~~Agent, ~~including any action that may~~ shall be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, ~~and that such term is used as a matter~~ rule or regulation or contrary to any provision of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or ~~any Loan Document~~ shall ~~require~~ expose the ~~Administrative~~ Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or ~~thereunder in~~ otherwise. Upon the occurrence and during the continuance of any Termination Event or Potential Termination Event, the Agent shall take no action hereunder (other than ministerial actions or such ~~capacity, but all such persons shall have the benefit of the indemnities~~ actions as are specifically provided for ~~hereunder. (f~~herein) ~~In case of~~ without the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on such Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this Section 8 are solely for the benefit of the Administrative Agent and the Lenders, and, except solely to the extent of any Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions.prior 0104420.05-01S7a 89

Appears in 1 contract

Sources: Transfer and Administration Agreement (Tech Data Corp)

Authorization and Action. (a) Each Lender hereby irrevocably appoints the entity named as Administrative Agent in the ~~heading of~~ preamble to this Agreement and its successors and assigns to serve as the administrative agent under the Loan ~~Documents,~~ Documents and each Lender authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent reasonably and in good faith believes exposes it to liability unless the Administrative Agent receives ~~written~~ an indemnification ~~and is exculpated in a manner~~ satisfactory to it from the Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 ~~any Borrower~~the Company, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. ~~The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.~~ Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other ~~obligation~~ Obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this ~~Section 8~~ Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities pursuant to this Agreement. The Lenders acknowledge that the Administrative Agent shall not be responsible 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 the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) No None of any Syndication Agent, any Documentation Agent or any Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document (excluding, for the avoidance of doubt, any commitment and fee letters) and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to ~~any Borrower~~ the Company under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on ~~such Borrower~~the Company) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections ~~2.3~~2.12, ~~2.7~~ 2.13, 2.15, 2.17 and ~~2.10~~9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section ~~9.5~~9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The provisions of this ~~Section 8~~ Article are solely for the benefit of the Administrative Agent and the ~~Lenders,~~ Lenders and, except solely to the extent of ~~any Borrower~~the Company’s rights to consent pursuant to and subject to the conditions set forth in this ~~Section 8~~Article, none of the ~~Borrowers~~ Company or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each party that is a holder of Obligations, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the guarantees of the Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Fiserv Inc)

Authorization and Action. (a) Each Lender (in its capacity as a Lender) hereby ~~irrevocably~~ appoints ~~the entity named as Administrative Agent in the heading of this Agreement~~ and ~~its successors and assigns to serve as the administrative agent under the Loan Documents, and each Lender~~ authorizes the Administrative Agent to take such ~~actions~~ action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent ~~under such agreements~~ by the terms hereof and ~~to exercise~~ thereof, together with such powers and discretion as are reasonably incidental thereto. Without limiting the foregoing, each Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for ~~herein and in~~ by the ~~other~~ Loan Documents (~~including~~ including, without limitation, enforcement of the Obligations or ~~collection~~collection of the Obligations owing under the Loan Documents), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the ~~written~~ instructions of the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary~~Lenders, ~~pursuant to the terms in the Loan Documents), and, unless~~ and ~~until revoked in writing,~~ such instructions shall be binding upon ~~each Lender~~all Lenders and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action that ~~(i)~~ exposes the Administrative Agent ~~in good faith believes exposes it~~ to personal liability ~~unless the Administrative Agent receives written indemnification and is exculpated in a manner satisfactory to it from the Lenders with respect to such action~~ or ~~(ii)~~ that is contrary to this Agreement or ~~any other Loan Document or~~ applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. 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 any Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower. Without limiting the generality of the foregoing~~: (i)~~ , each Lender hereby authorizes and instructs the Administrative Agent ~~does not assume and shall not~~ to enter into the documents to be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty entered into by the Administrative Agent expressly mentioned in connection with this Agreement and the transactions contemplated hereby; and (ii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own accountSection 3.01. (db) The Administrative Agent may ~~perform~~ execute any of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 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 pursuant to this Agreement. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Term Loan Collateral Documents or of exercising any rights and remedies thereunder at the direction of the Term Loan Collateral Agent) by or through agents, employees or attorneys-in-fact and shall ~~incur no liability hereunder~~ be entitled to advice of counsel and other consultants or ~~thereunder in~~ experts concerning all matters pertaining to such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Borrower under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the duties. The Administrative Agent shall ~~have made any demand on such Borrower) shall~~ not be ~~entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim~~ responsible for the ~~whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary~~ negligence or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.3, 2.7 and 2.10) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.5). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf misconduct of any ~~Lender any plan of reorganization~~agent, ~~arrangement, adjustment~~ employee or ~~composition affecting~~ attorney-in-fact that it selects in accordance with the ~~Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. (g) The~~ foregoing provisions of this Section ~~8 are solely for~~ 7.01(b) in the ~~benefit~~ absence of the Administrative ~~Agent and the Lenders, and, except solely to the extent of any Borrower~~Agent’s ~~rights to consent pursuant to and subject to the conditions set forth in this Section 8, none of the Borrowers~~ gross negligence or ~~any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions~~willful misconduct.

Appears in 1 contract

Sources: Registration Rights Agreement (Crestview Partners III GP, L.P.)

Common use of Authorization and Action Clause in Contracts