Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders or the Administrative Agent with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or the Administrative Agent; and such Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, neither any Lender nor any Issuing Lender shall have any right of action whatsoever against such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of the Required Lenders or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform any and 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary 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 the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 12.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders (or such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall except as expressly set forth herein or in the other Credit Documents, have any duty to disclose, and shall not be liable to the Lenders for the failure to disclose, any information relating to the Borrower or any Affiliate thereof that is communicated to or obtained by the Person serving as Administrative Agent, Collateral Agent or any of their respective Affiliates in any capacity and (c) no Agent (nor any of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders as shall be necessary under the circumstances as provided in Section 11.01 or the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform any and 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision12.12); provided, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial if the Agent is not indemnified to its satisfaction, or otherwisethat is contrary to any Credit Document or applicable Legal Requirements including, for the avoidance of doubt any action that may be in violation of the performance automatic stay under the Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or that may affect a foreclosure, modification or termination of property of a Defaulting Lender under the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect. The Administrative Agent shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any of its duties Lender to whom payment was due but not made, shall be to recover pro rata from other Lenders any payment equal to the amount to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received by them). The Administrative Agent and the Collateral Agent shall have no obligation to monitor whether any amendment or waiver to any Loan Document has properly become effective or is permitted hereunder or thereunder except to the extent expressly agreed to by the Administrative Agent or the exercise of any of its rights and powers under the Loan DocumentsCollateral Agent in such amendment or waiver. In no event shall any Agent be liable for any consequential, indirect, punitive failure or special loss or damage of any kind whatsoever (including loss of profit) relating to its delay in the performance of its duties their respective obligations under this Agreement or any other Loan Document irrespective related documents because of whether circumstances beyond such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its Agent’s control. Such acts shall include, including, but not be limited to, a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, strikesflood, lockoutswar (whether declared or undeclared), riotscivil or military disturbances or hostilities, acts of warnuclear or natural catastrophes, epidemicspolitical unrest, governmental regulations superimposed after the factexplosion, severe weather or accident, earthquake, terrorism, fire, communication line failuresriot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Agreement or any related documents, or the unavailability of communications or computer virusesfacilities, power failuresthe failure of equipment or interruption of communications or computer facilities, earthquakes, terrorist attacks or the unavailability of the Federal Reserve Bank wire or telex or other disasters. Delivery of reportswire or communication facility, documents and or any other information to an Agent is for informational purposes only and such causes beyond the Agent’s receipt control whether or not of the foregoing same class or kind as specified above. Nothing in this Agreement or any other Credit Document shall not constitute constructive knowledge require the Administrative Agent or the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any event of its duties or circumstance in the exercise of any of its rights or powers hereunder. The Agents shall have no obligation for (a) perfecting, maintaining, monitoring, preserving or protecting the security interest or Lien granted under this Agreement, any other Credit Document, or any information contained therein agreement or determinable from information contained therein. Information contained in noticesinstrument contemplated hereby or thereby; (b) the filing, reports re-filing, recording, re-recording, or continuing of any document, financing statement, mortgage, assignment, notice, instrument of further assurance, or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If instrument in any public office at any time an or times; or (c) providing, maintaining, monitoring, or preserving insurance on or the payment of taxes with respect to any Collateral. The Agents 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 Lender or (y) have any liability with respect to or arising out of any assignment or participation of Term Loans, or disclosure of confidential information, to any Disqualified Lender. The Administrative Agent is served does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the administration of, submission of, calculation of or any judicial other matter related to SOFR or administrative orderany component definition thereof or rates referenced in the definition thereof or any alternative, judgmentcomparable or successor rate thereto (including any then-current Benchmark or any Benchmark Replacement), decreeincluding whether the composition or characteristics of any such alternative, writ comparable or successor rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, SOFR or any other form Benchmark Replacement, or (b) the effect, implementation or composition of judicial or administrative process any Benchmark Replacement Conforming Changes (including, but not limited to, orders of attachment determining whether any Benchmark Replacement Conforming Changes, if any, are necessary or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary 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 the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other countryadvisable). The Administrative Agent shall be under no duty or obligation (i) to monitor, determine or verify the availability, cessation or replacement of any Benchmark, or the occurrence of any Benchmark Transition Event or Benchmark Replacement Date, or (ii) to identify, determine or select any Benchmark Replacement, any Benchmark Replacement Adjustment, or other replacement benchmark or any replacement or successor index. The Administrative Agent shall not have any liability for any interest rate published on any publicly available source (including but not limited to the right Federal Reserve Bank of New York’s Website), by any publication or other source for determining any interest rates applicable to withhold amounts from any payments under Loan, including, without limitation, any inaccuracy or error relating to the Loan Documents, and publication of any such interest rates. The Administrative Agent shall not be liable for such withholdingany delay or failure in performing its duties under this Agreement directly or indirectly as a result of the unavailability of any Benchmark or the absence of a designated replacement Benchmark, including as required a result of any delay or error on the part of any other Person, or whether as a result of any other Person providing or failing to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as provide the Administrative Agent and Collateral Agent, shall have no liability with any information or direction pursuant to the Loan Partiesterms of this Agreement or any Credit Document other than, in each case, to the extent of the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision. Nothing in this Section shall constitute a representation or warranty by Holdings, the Lenders Borrower or any other Person in connection with of their Subsidiaries nor can it constitute the basis of any tax withholding amounts paid Default or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this AgreementEvent of Default.
Appears in 2 contracts
Samples: Loan Credit Agreement (J.Jill, Inc.), Loan Credit Agreement (J.Jill, Inc.)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 13.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders (or such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders or as shall be necessary under the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform any and 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervisioncircumstances as provided in Section 13.12); provided, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial or otherwise, in if the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating is not indemnified to its performance of its duties under this Agreement satisfactory, or that is contrary to any other Loan Credit Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (applicable Legal Requirements including, but not limited to, orders for the avoidance of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) doubt any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it in violation of the automatic stay under the terms Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of such creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other agreement applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or agreements). Prior to any paymentthat may affect a foreclosure, distribution modification or transfer termination of funds by an Agent to any Person property of a Defaulting Lender under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or informationBankruptcy Code, and so long as such documentation or information remain accurate and true). The Agents shall have no dutyall other liquidation, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Personconservatorship, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent maybankruptcy, in its discretionassignment for the benefit of creditors, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investmentmoratorium, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any lossrearrangement, including without limitation any loss of principal or interestreceivership, insolvency, reorganization, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms similar debtor relief laws of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request United States or other communication from, or other direction given or action applicable jurisdictions from time to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected time in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreementeffect.
Appears in 1 contract
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 13.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders (or such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders or as shall be necessary under the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform any and 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervisioncircumstances as provided in Section 12.01 or13.12); provided, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial if the Agent is not indemnified to its satisfaction, or otherwisethat is contrary to any Credit Document or applicable Legal Requirements including, for the avoidance of doubt any action that may be in violation of the performance of any of its duties or the exercise of any of its rights and powers automatic stay under the Loan DocumentsBankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or that may affect a foreclosure, modification or termination of property of a Defaulting Lender under the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect. In no event 148 The Administrative Agent does not warrant or accept responsibility for, and shall not have any Agent be liable for any consequentialliability with respect to (a) the administration of, indirectsubmission of, punitive or special loss or damage calculation of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective matter related to SOFR or any component definition thereof or rates referenced in the definition thereof or any alternative, comparable or successor rate thereto (including any then-current Benchmark or any Benchmark Replacement), including whether the composition or characteristics of whether any such Agent has been advised of the likelihood of such loss alternative, comparable or damage and regardless of the form of action. In no event shall successor rate (including any Agent Benchmark Replacement) will be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited similar to, acts of Godor produce the same value or economic equivalence of, strikesor have the same volume or liquidity as, lockoutsSOFR or any other Benchmark Replacement, riotsor (b) the effect, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks implementation or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge composition of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process Benchmark Replacement Conforming Changes (including, but not limited to, orders of attachment determining whether any Benchmark Replacement Conforming Changes, if any, are necessary or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary 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 the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other countryadvisable). The Administrative Agent shall be under no duty or obligation (i) to monitor, determine or verify the availability, cessation or replacement of any Benchmark, or the occurrence of any Benchmark Transition Event or Benchmark Replacement Date, or (ii) to identify, determine or select any Benchmark Replacement, any Benchmark Replacement Adjustment, or other replacement benchmark or any replacement or successor index. The Administrative Agent shall not have any liability for any interest rate published on any publicly available source (including but not limited to the right Federal Reserve Bank of New York’s Website), by any publication or other source for determining any interest rates applicable to withhold amounts from any payments under Loan, including, without limitation, any inaccuracy or error relating to the Loan Documents, and publication of any such interest rates. The Administrative Agent shall not be liable for such withholdingany delay or failure in performing its duties under this Agreement directly or indirectly as a result of the unavailability of any Benchmark or the absence of a designated replacement Benchmark, including as required a result of any delay or error on the part of any other Person, or whether as a result of any other Person providing or failing to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as provide the Administrative Agent and Collateral Agent, shall have no liability with any information or direction pursuant to the Loan Partiesterms of this Agreement or any Credit Document other than, in each case, to the extent of the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision. Nothing in this Section shall constitute a representation or warranty by Parent, the Lenders Company or any other Person in connection with of their Subsidiaries nor can it constitute the basis of any tax withholding amounts paid Default or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this AgreementEvent of Default.
Appears in 1 contract
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 12.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders (or such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders or as shall be necessary under the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform any and 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents circumstances as provided in Section 12.12); provided that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial or otherwise, in if the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating is not indemnified to its performance of its duties under this Agreement satisfactory, or that is contrary to any other Loan Credit Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (applicable Legal Requirements including, but not limited to, orders for the avoidance of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) doubt any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it in violation of the automatic stay under the terms Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of such creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other agreement applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or agreements). Prior to any paymentthat may effect a foreclosure, distribution modification or transfer termination of funds by an Agent to any Person property of a Defaulting Lender under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or informationBankruptcy Code, and so long as such documentation or information remain accurate and true). The Agents shall have no dutyall other liquidation, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Personconservatorship, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent maybankruptcy, in its discretionassignment for the benefit of creditors, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investmentmoratorium, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any lossrearrangement, including without limitation any loss of principal or interestreceivership, insolvency, reorganization, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms similar debtor relief laws of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request United States or other communication from, or other direction given or action applicable jurisdictions from time to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected time in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreement.effect
Appears in 1 contract
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 12.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders (or such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders or as shall be necessary under the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform any and 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents circumstances as provided in Section 12.12); provided that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to 130 liability, financial or otherwise, in if the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating is not indemnified to its performance of its duties under this Agreement satisfactory, or that is contrary to any other Loan Credit Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (applicable Legal Requirements including, but not limited to, orders for the avoidance of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) doubt any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it in violation of the automatic stay under the terms Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of such creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other agreement applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or agreements). Prior to any paymentthat may effect a foreclosure, distribution modification or transfer termination of funds by an Agent to any Person property of a Defaulting Lender under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or informationBankruptcy Code, and so long as such documentation or information remain accurate and true). The Agents shall have no dutyall other liquidation, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Personconservatorship, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent maybankruptcy, in its discretionassignment for the benefit of creditors, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investmentmoratorium, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any lossrearrangement, including without limitation any loss of principal or interestreceivership, insolvency, reorganization, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms similar debtor relief laws of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request United States or other communication from, or other direction given or action applicable jurisdictions from time to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected time in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreement.effect
Appears in 1 contract
Samples: Security Agreement
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 12.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders (or such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall except as expressly set forth herein or in the other Credit Documents, have any duty to disclose, and shall not be liable to the Lenders for the failure to disclose, any information relating to the Borrower or any Affiliate thereof that is communicated to or obtained by the Person serving as Administrative Agent, Collateral Agent or any of their respective Affiliates in any capacity and (c) no Agent (nor any of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders as shall be necessary under the circumstances as provided in Section 11.01 or the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform any and 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervisionSection 12.12); provided, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial if the Agent is not indemnified to its satisfaction, or otherwisethat is contrary to any Credit Document or applicable Legal Requirements including, for the avoidance of doubt any action that may be in violation of the performance automatic stay under the Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or that may affect a foreclosure, modification or termination of property of a Defaulting Lender under the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect. The Administrative Agent shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any of its duties Lender to whom payment was due but not made, shall be to recover pro rata from other Lenders any payment equal to the amount to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received by them). The Administrative Agent and the Collateral Agent shall have no obligation to monitor whether any amendment or waiver to any Loan Document has properly become effective or is permitted hereunder or thereunder except to the extent expressly agreed to by the Administrative Agent or the exercise of any of its rights and powers under the Loan DocumentsCollateral Agent in such amendment or waiver. In no event shall any Agent be liable for any consequential, indirect, punitive failure or special loss or damage of any kind whatsoever (including loss of profit) relating to its delay in the performance of its duties their respective obligations under this Agreement or any other Loan Document irrespective related documents because of whether circumstances beyond such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its Agent’s control. Such acts shall include, including, but not be limited to, a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, strikesflood, lockoutswar (whether declared or undeclared), riotscivil or military disturbances or hostilities, acts of warnuclear or natural catastrophes, epidemicspolitical unrest, governmental regulations superimposed after the factexplosion, severe weather or accident, earthquake, terrorism, fire, communication line failuresriot, labor disturbances, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Agreement or any related documents, or the unavailability of communications or computer virusesfacilities, power failuresthe failure of equipment or interruption of communications or computer facilities, earthquakes, terrorist attacks or the unavailability of the Federal Reserve Bank wire or telex or other disasters. Delivery of reportswire or communication facility, documents and or any other information to an Agent is for informational purposes only and such causes beyond the Agent’s receipt control whether or not of the foregoing same class or kind as specified above. Nothing in this Agreement or any other Credit Document shall not constitute constructive knowledge require the Administrative Agent or the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any event of its duties or circumstance in the exercise of any of its rights or powers hereunder. The Agents shall have no obligation for (a) perfecting, maintaining, monitoring, preserving or protecting the security interest or Lien granted under this Agreement, any other Credit Document, or any information contained therein agreement or determinable from information contained therein. Information contained in noticesinstrument contemplated hereby or thereby; (b) the filing, reports re-filing, recording, re-recording, or continuing of any document, financing statement, mortgage, assignment, notice, instrument of further assurance, or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If instrument in any public office at any time an or times; or (c) providing, maintaining, monitoring, or preserving insurance on or the payment of taxes with respect to any Collateral. The Agents 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 Lender or (y) have any liability with respect to or arising out of any assignment or participation of Term Loans, or disclosure of confidential information, to any Disqualified Lender. The Administrative Agent is served does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the administration of, submission of, calculation of or any judicial other matter related to SOFR or administrative orderany component definition thereof or rates referenced in the definition thereof or any alternative, judgmentcomparable or successor rate thereto (including any then-current Benchmark or any Benchmark Replacement), decreeincluding whether the composition or characteristics of any such alternative, writ comparable or successor rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, SOFR or any other form Benchmark Replacement, or (b) the effect, implementation or composition of judicial or administrative process any Benchmark Replacement Conforming Changes (including, but not limited to, orders of attachment determining whether any Benchmark Replacement Conforming Changes, if any, are necessary or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary 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 the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other countryadvisable). The Administrative Agent shall be under no duty or obligation (i) to monitor, determine or verify the availability, cessation or replacement of any Benchmark, or the occurrence of any Benchmark Transition Event or Benchmark Replacement Date, or (ii) to identify, determine or select any Benchmark Replacement, any Benchmark Replacement Adjustment, or other replacement benchmark or any replacement or successor index. The Administrative Agent shall not have any liability for any interest rate published on any publicly available source (including but not limited to the right Federal Reserve Bank of New York’s Website), by any publication or other source for determining any interest rates applicable to withhold amounts from any payments under Loan, including, without limitation, any inaccuracy or error relating to the Loan Documents, and publication of any such interest rates. The Administrative Agent shall not be liable for such withholdingany delay or failure in performing its duties under this Agreement directly or indirectly as a result of the unavailability of any Benchmark or the absence of a designated replacement Benchmark, including as required a result of any delay or error on the part of any other Person, or whether as a result of any other Person providing or failing to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as provide the Administrative Agent and Collateral Agent, shall have no liability with any information or direction pursuant to the Loan Partiesterms of this Agreement or any Credit Document other than, in each case, to the extent of the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision. Nothing in this Section shall constitute a representation or warranty by Holdings, the Lenders Borrower or any other Person in connection with of its Subsidiaries nor can it constitute the basis of any tax withholding amounts paid Default or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this AgreementEvent of Default.
Appears in 1 contract
Samples: Credit Agreement (J.Jill, Inc.)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 13.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders (or such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders or as shall be necessary under the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform any and 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervisioncircumstances as provided in Section 12.01 or13.12); provided, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial or otherwise, in if the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating is not indemnified to its performance of its duties under this Agreement satisfaction, or that is contrary to any other Loan Credit Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (applicable Legal Requirements including, but not limited to, orders for the avoidance of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) doubt any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it in violation of the automatic stay under the terms Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of such creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other agreement applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or agreements). Prior to any paymentthat may affect a foreclosure, distribution modification or transfer termination of funds by an Agent to any Person property of a Defaulting Lender under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or informationBankruptcy Code, and so long as such documentation or information remain accurate and true). The Agents shall have no dutyall other liquidation, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Personconservatorship, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent maybankruptcy, in its discretionassignment for the benefit of creditors, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investmentmoratorium, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any lossrearrangement, including without limitation any loss of principal or interestreceivership, insolvency, reorganization, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms similar debtor relief laws of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request United States or other communication from, or other direction given or action applicable jurisdictions from time to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected time in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrenceeffect. The Administrative Agent does not warrant or accept responsibility for, and shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent not have any duty, obligation or liability with respect to (a) the withholding laws continuation, administration, submission, or requirements calculation of or any other matter related to the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other country)Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Benchmark Conforming Changes. The Administrative Agent shall have and its affiliates or other related entities may engage in transactions that affect the right calculation of the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to withhold amounts from the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, or any payments under other Benchmark, in each case pursuant to the Loan Documentsterms of this Agreement, and shall not be liable for such withholding, as required to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan PartiesBorrower, the Lenders any Lender or any other Person person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in connection with tort, contract or otherwise and whether at law or in equity), for any tax withholding amounts paid error or withheld pursuant to applicable law arising from calculation of any Loan Party’s such rate (or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 component thereof) provided by any such information source or such other documentation contemplated under this Agreementservice.
Appears in 1 contract
Samples: Schedules (J.Jill, Inc.)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 13.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders (or such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither (a) no Agent shall be subject to any Lender fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and (b) no Agent (nor any Issuing Lender of their officers, partners, directors, employees or agents) shall have any right of duty to take any discretionary action whatsoever against or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document is required to exercise in accordance with the instructions of writing by the Required Lenders (or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction such other number or percentage of the Required Lenders or as shall be necessary under the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform any and 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervisioncircumstances as 160 provided in Section 12.01 or13.12); provided, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No no Agent shall be required to usetake any action that, risk in its opinion or advance the opinion of its own funds or otherwise incur any counsel, may expose such Agent to liability, financial if the Agent is not indemnified to its satisfaction, or otherwisethat is contrary to any Credit Document or applicable Legal Requirements including, for the avoidance of doubt any action that may be in violation of the performance of any of its duties or the exercise of any of its rights and powers automatic stay under the Loan DocumentsBankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or that may affect a foreclosure, modification or termination of property of a Defaulting Lender under the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect. In no event The Administrative Agent does not warrant or accept responsibility for, and shall not have any Agent be liable for any consequentialliability with respect to (a) the continuation, indirectadministration of, punitive submission of, or special loss or damage calculation of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective matter related to the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referencedreferred to in the definition thereof, or any alternative, comparable or successor or replacement rate thereto (including any then-current Benchmark or any Benchmark Replacement), including whether the composition or characteristics of whether any such Agent has been advised of the likelihood of such loss alternative, comparable or damage and regardless of the form of action. In no event shall successor or replacement rate (including any Agent Benchmark Replacement) will be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited similar to, acts of Godor produce the same value or economic equivalence of, strikesor have the same volume or liquidity as, lockoutsthe Base Rate, riotsthe Term SOFR Reference Rate, acts of warAdjusted Term SOFR, epidemicsTerm SOFR or any other Benchmark Replacementprior to its discontinuance or unavailability, governmental regulations superimposed after or (b) the facteffect, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks implementation or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge composition of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process Benchmark Replacement Conforming Changes (including, but not limited to, orders of attachment determining whether any Benchmark Replacement Conforming Changes, if any, are necessary or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary 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 the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other countryadvisable). The Administrative Agent shall be under no duty or obligation (i) to monitor, determine or verify the availability, cessation or replacement of any Benchmark, or the occurrence of any Benchmark Transition Event or Benchmark Replacement Date, or (ii) to identify, determine or select any Benchmark Replacement, any Benchmark Replacement Adjustment, or other replacement benchmark or any replacement or successor index and its affiliates or other related entities may engage in transactions that affect the calculation of the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent shall not have any liability for any interest rate published on any publicly available source (including but not limited to the right Federal Reserve Bank of New York's Website), by any publication or other source for determining any interest rates applicable to withhold amounts from any payments under Loan, including, without limitation, any inaccuracy or error relating to the Loan Documents, and publication of any such interest rates. The Administrative Agent shall not be liable for such withholdingany delay or failure in performing its duties under this Agreement directly or indirectly as a result of the unavailability of any Benchmark or the absence of a designated replacement Benchmark, including as required a result of any delay or error on the part of any other Person, or whether as a result of any other Person providing or failing to comply with applicable law. PNC Bank, National Association, both in its individual capacity and in its capacity as provide the Administrative Agent with any information or directionmay select information sources or services in its reasonable discretion to ascertain the Base Rate, the Term OSFR Reference Rate, Adjusted Term SOFR. Term SOFR, or any other Bencharmk, in each case pursuant to the terms of this 161 Agreement or any Credit Document other than, in each case, to the extent of the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and Collateral Agentnon-appealable decision. Nothing in this Section shall constitute a representation or warranty by Parent, the Company or any of their Subsidiaries nor can it constitute the basis of any Default or Event of Default.. and shall have no liability to the Loan PartiesBorrower, the Lenders any Lender or any other Person person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in connection with tort, contract or otherwise and whether at law or in equity), for any tax withholding amounts paid error or withheld pursuant to applicable law arising from calculation of any Loan Party’s such rate (or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 component thereof) provided by any such information source or such other documentation contemplated under this Agreementservice.
Appears in 1 contract
Samples: Abl Credit Agreement (J.Jill, Inc.)
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders (or the Administrative Agent such other Lenders as may be required to give such instructions under Section 12.12) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Credit Document, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders (or such other Lenders, as the Administrative Agentcase may be); and such Agent shall not incur liability to any Person Lender by reason of so refraining. Without limiting the generality of the foregoing, neither any Lender nor any Issuing Lender shall have any right of action whatsoever against such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of the Required Lenders or the Administrative Agent. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent shall apply and be sufficient for all purposes. Each Agent may perform any and 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 such Agent. Such Agent and any such sub- Agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent and to the Related Parties of such Agent and any such sub- Agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No (a) no Agent shall be required subject to useany fiduciary or other implied duties, risk or advance its own funds or otherwise incur any liabilityregardless of whether a Default has occurred and is continuing, financial or otherwise, in the performance of (b) no Agent (nor any of its duties their officers, partners, directors, employees or the exercise of any of its rights and powers under the Loan Documents. In no event agents) shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner except as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each Agent may, in its discretion, invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investment, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. Notwithstanding anything else to the contrary set forth herein or in the other Loan Credit Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary 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 the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect duty to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documentsdisclose, and shall not be liable to the Lenders for the failure to disclose, any information relating to the Borrower or any Affiliate thereof that is communicated to or obtained by the Person serving as Administrative Agent, Collateral Agent or any of their respective Affiliates in any capacity and (c) no Agent (nor any of their officers, partners, directors, employees or agents) shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Credit Documents that such withholding, as Agent is required to comply with applicable law. PNC Bank, National Association, both exercise in its individual capacity and in its capacity as writing by the Administrative Agent and Collateral Agent, shall have no liability to the Loan Parties, the Required Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Party’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 (or such other documentation contemplated number or percentage of the Lenders as shall be necessary under this Agreementthe circumstances as provided in Section 11.01 or 12.12); provided, that no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability, if the Agent is not indemnified to its satisfaction, or that is contrary to any Credit Document or applicable Legal Requirements including, for the avoidance of doubt any action that may be in violation of the automatic stay under the Bankruptcy Code and any and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally or that may affect a foreclosure, modification or termination of property of a Defaulting Lender under the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect; provided, further, that no Agent 137 shall have any liability for action taken or not taken by it with the consent of or at the request or direction of the Required Lenders.
Appears in 1 contract
Certain Rights of the Agents. Notwithstanding any provision of this Agreement or the other Loan Documents to the contrary, before taking or omitting any action to be taken or omitted by an Agent under the terms of this Agreement and the other Loan Documents, such Agent may seek the written direction of the Required Lenders or the Administrative Agent Lead Lender (which written direction may be in the form of an email), and such Agent is entitled to rely (and is fully protected in so relying) upon such direction. If any Agent shall request instructions from the Required Lenders or the Administrative Agent Lead Lender with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, such Agent shall be entitled to refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders or the Administrative AgentLead Lender; and such Agent shall not incur liability to any Person by reason of so refraining. Without limiting the foregoing, neither any Lender nor any Issuing Lender shall have any right of action whatsoever against such Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of the Required Lenders or the Administrative AgentLead Lender. In the absence of an express statement in the Loan Documents regarding which Lenders shall direct in any circumstance, the direction of the Required Lenders or the Administrative Agent Lead Lender shall apply and be sufficient for all purposes. Each Agent may perform any and 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 agents appointed by such Agent. Such Agent and any such sub- Agent sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub- Agent sub-agent and to the Related Parties of such Agent and any such sub- Agentsub-agent. The Agents shall not be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-Agents agents that they select with due care. Each Lender authorizes and directs each Agent to enter into the Loan Documents to which it is a party on the date hereof on behalf of and for the benefit of the Lenders. No Agent shall be required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the exercise of any of its rights and powers under the Loan Documents. In no event shall any Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any other Loan Document irrespective of whether such Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Agent be responsible or liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters. Delivery of reports, documents and other information to an Agent is for informational purposes only and such Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to an Agent and other publicly available information shall not constitute actual or constructive knowledge. If at any time an Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), such Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate; and if such Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, such Agent shall not be liable even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Loan Documents, each Agent shall have all of the rights, immunities, indemnities and other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of such other agreement or agreements). Prior to any payment, distribution or transfer of funds by an Agent to any Person under the Loan Documents, the payee shall provide to such Agent such documentation and information as may be requested by such Agent (unless such Person has previously provided the documentation or information, and so long as such documentation or information remain accurate and true). The Agents shall have no duty, obligation or liability to make any payment to any Person unless they have timely received such documentation and information with respect to such Person, which documentation and information shall be reasonably satisfactory to such Agent. Each The Lead Lender shall direct the applicable Agent may, in its discretion, writing to invest in Cash Equivalents any funds held by such Agent under the Loan Documents. Absent such investmentinstructions from the Lead Lender, funds in any account held by the Administrative Agent or the Collateral Agent under the Loan Documents shall remain uninvested. Neither the Administrative Agent nor the Collateral Agent shall be liable for any loss, including without limitation any loss of principal or interest, or for any breakage fees or penalties in connection with the purchase or liquidation of any investment made in accordance with the terms of the Loan Documents. The Lead Lender acknowledges that upon its written request and at no additional cost, it has the right to receive notification after the completion of each purchase and sale of permitted investments or the applicable Agent’s receipt of a broker’s confirmation. The Lead Lender agrees that such notifications shall not be provided by the Agents and the Agents shall make available, upon request and in lieu of notifications, periodic account statements that reflect such investment activity. No statement need be made available for any account if no activity has occurred in such account during such period. Notwithstanding anything else to the contrary herein or in the other Loan Documents, whenever reference is made in this Agreement or any other Loan Document to any discretionary 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 the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent or the Collateral Agent, it is understood and agreed that such Agent shall be acting at the direction of the Required Lenders or the Administrative Agent Lead Lender and shall be fully protected in acting pursuant to such directions. In all cases the Agents shall be fully justified in failing or refusing to take any such action under the Loan Documents if they shall not have received such direction, instruction, advice or concurrence. The Administrative Agent shall act as the withholding agent under this Agreement with respect to U.S. withholding only (and in no event shall the Administrative Agent have any duty, obligation or liability with respect to the withholding laws or requirements of any other country). The Administrative Agent shall have the right to withhold amounts from any payments under the Loan Documents, and shall not be liable for such withholding, as required to comply with applicable law. PNC Xxxxx Fargo Bank, National Association, both in its individual capacity and in its capacity as the Administrative Agent and Collateral Agent, shall have no liability to the Loan PartiesBorrower, the Lenders or any other Person in connection with any tax withholding amounts paid or withheld pursuant to applicable law arising from any Loan Partythe Borrower’s or a Lender’s failure, as applicable, to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this Agreement.
Appears in 1 contract
Samples: Exit Abl Credit Agreement (Pyxus International, Inc.)
