The Administrative Agent. Each of the Lenders, the Swingline Lender and each Letter of Credit Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Swingline Lender, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 5 contracts

Sources: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)

The Administrative Agent. Each of the Lenders, the Swingline Lender and each Letter of Credit Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Swingline Lender, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the ~~Arrangers~~Joint Bookrunners, the ~~Co-Syndication Agents~~ Joint Lead Arrangers and the ~~Co-Documentation~~ Syndication Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 5 contracts

Sources: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement to serve as ~~its~~ administrative agent, collateral agent and trustee under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and none of Holdings, the Parent Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Parent Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in ~~Section 12.1~~the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the ~~Borrower~~ Parent Borrower, any other Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~12.1~~2.05(j) or Section 9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the ~~Borrower~~ Parent Borrower, a Lender or ~~a Lender~~an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person~~, and shall not incur any liability for relying thereon~~). The Administrative Agent may consult with legal counsel (who may be counsel for the Parent Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign ~~at any time by notifying~~ upon 30 days’ notice to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Parent Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Parent Borrower and the Required Lenders. Upon receipt of any such ~~resignation~~notice of resignation or upon such removal, the Required Lenders shall have the right, with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Parent Borrower’s consent, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be ~~a bank~~ an Approved Bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such ~~bank~~Approved Bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by Holdings and the Parent Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by Holdings, the Parent Borrower and such successor. After the Administrative Agent’s resignation ~~hereunder~~hereunder and under the other Loan Documents, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender and each Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Term Facility Amendment or Refinancing Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Lender shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Lenders in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Lenders at such sale or other disposition. Each Lender, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations, to have agreed to the foregoing provisions. Notwithstanding anything herein to the ~~contrary the Arrangers~~contrary, ~~the Co-Syndication Agents and the Co-Documentation Agents~~ neither any Joint Bookrunner nor any Person named on the cover page of this Agreement as a Joint Lead Arranger or a Syndication Agent shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder, including under Section 9.03, fully as if named as an indemnitee or indemnified person therein and irrespective of whether the indemnified losses, claims, damages, liabilities and/or related expenses arise out of, in connection with or as a result of matters arising prior to, on or after the effective date of any Loan Document. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. Without limiting or expanding the provisions of Section 2.17, each Lender shall, and does hereby, indemnify the Administrative Agent against, and shall make payable in respect thereof within 30 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the U.S. Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this paragraph. The agreements in this paragraph shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender and the repayment, satisfaction or discharge of all other obligations under any Loan Document. Each party to this Agreement hereby appoints the Administrative Agent to act as its agent under and in connection with the relevant Security Documents, acknowledges that the Administrative Agent is the beneficiary of the parallel debt referred to in the relevant Security Documents and the Administrative Agent will accept the parallel debt arrangements reflected in the relevant Security Documents on its behalf and will enter into the relevant Security Documents as pledgee in its own name.

Appears in 4 contracts

Sources: Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.)

Appears in 4 contracts

Sources: Credit Agreement (Ethan Allen Interiors Inc), Credit Agreement (Ethan Allen Interiors Inc), Credit Agreement (Ethan Allen Interiors Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement to serve as ~~its~~ administrative agent, collateral agent and trustee under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and none of Holdings, the Parent Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Parent Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in ~~Section 12.1~~the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the ~~Borrower~~ Parent Borrower, any other Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~12.1~~2.05(j) or Section 9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the ~~Borrower~~ Parent Borrower, a Lender or ~~a Lender~~an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person~~, and shall not incur any liability for relying thereon~~). The Administrative Agent may consult with legal counsel (who may be counsel for the Parent Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign ~~at any time by notifying~~ upon 30 days’ notice to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Parent Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Parent Borrower and the Required Lenders. Upon receipt of any such ~~resignation~~notice of resignation or upon such removal, the Required Lenders shall have the right, with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Parent Borrower’s consent, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be ~~a bank~~ an Approved Bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such ~~bank~~Approved Bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by Holdings and the Parent Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by Holdings, the Parent Borrower and such successor. After the Administrative Agent’s resignation ~~hereunder~~hereunder and under the other Loan Documents, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender and each Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption or Refinancing Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Lender shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Lenders in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Lenders at such sale or other disposition. Each Lender, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations, to have agreed to the foregoing provisions. Notwithstanding anything herein to the ~~contrary the Arrangers~~contrary, ~~the Co-Syndication Agents and the Co-Documentation Agents~~ neither any Joint Bookrunner nor any Person named on the cover page of this Agreement as a Joint Lead Arranger or a Syndication Agent shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder, including under Section 9.03, fully as if named as an indemnitee or indemnified person therein and irrespective of whether the indemnified losses, claims, damages, liabilities and/or related expenses arise out of, in connection with or as a result of matters arising prior to, on or after the effective date of any Loan Document. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. Without limiting or expanding the provisions of Section 2.17, each Lender shall, and does hereby, indemnify the Administrative Agent against, and shall make payable in respect thereof within 30 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the U.S. Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this paragraph. The agreements in this paragraph shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender and the repayment, satisfaction or discharge of all other obligations under any Loan Document. Each party to this Agreement hereby appoints the Administrative Agent to act as its agent under and in connection with the relevant Security Documents, acknowledges that the Administrative Agent is the beneficiary of the parallel debt referred to in the relevant Security Documents and the Administrative Agent will accept the parallel debt arrangements reflected in the relevant Security Documents on its behalf and will enter into the relevant Security Documents as pledgee in its own name.

Appears in 4 contracts

Sources: Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.)

The Administrative Agent. (a) Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter~~ of ~~Credit Issuer~~ the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. . (b) The ~~bank serving as the~~ Administrative Agent ~~hereunder~~ shall have the same rights and powers in its capacity as a Lender hereunder as any other Lender and may exercise the same as though it the Administrative Agent were not the Administrative Agent, and ~~such bank~~ the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrower~~ any Credit Party or any Subsidiary or other Affiliate of any thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by this Agreement and the other Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1)~~Lenders, and (c) except as expressly set forth ~~herein~~herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Borrower~~ any Credit Party or any of ~~its~~ their respective Subsidiaries that is communicated to or obtained by the ~~bank serving as~~ Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if provided herein, with the consent or ~~such~~ at the request of any other specified number ~~or percentage~~ of ~~the Lenders as shall be necessary under the circumstances as provided in Section 12.1)~~ Lenders, or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this ~~Agreement~~Agreement or the other Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection ~~herewith~~herewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, the other Loan Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall not, except to the extent expressly instructed by the Required Lenders with respect to collateral security under the Security Documents, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. (e) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (f) The Administrative Agent may perform any and all of its ~~duties~~ duties, and exercise its rights and ~~powers~~ powers, by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through ~~their respective~~ its Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to ~~their respective~~ its activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. . (g) Subject to the appointment and acceptance of a successor Administrative ~~Agent~~ Agent, as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Lenders and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Company, to appoint a ~~successor~~successor Administrative Agent. If no successor shall have been so appointed ~~by the Required Lenders~~ and shall have accepted such appointment within 30 days after ~~the~~ such retiring Administrative Agent gives notice of its resignation, then ~~the~~ such retiring Administrative Agent may, on behalf of the Lenders and the Issuing Lenders~~, the Swingline Lender and each Letter of Credit Issuer~~, appoint a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative ~~Agent hereunder~~ Agent, by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After ~~the~~ an Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. . (h) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement~~Agreement and the other Loan Documents, any related agreement or any document furnished hereunder or thereunder~~. Notwithstanding anything herein to~~ . (i) The Administrative Agent shall not be responsible for monitoring the ~~contrary the Arrangers, the~~ existence or performance of any Secured Cash Management Agreement or Secured Swap Agreement. (j) No Person named as a Co-Syndication ~~Agents and the~~ Agent, Co-Documentation ~~Agents named on the cover page of~~ Agent, Joint Lead Arranger or Joint Bookrunner in this Agreement shall ~~not~~ have any ~~duties~~ rights (other than pursuant to Section 10.03(b)) or ~~liabilities~~ obligations under this Agreement or any other Loan Document in its capacity as such. (k) To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equal to any applicable withholding tax. If the IRS or any Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from any amount paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrowers and without limiting or expanding the obligation of the Borrowers to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties, additions to tax or interest thereto, together with all expenses incurred, including legal expenses and any out-of-pocket expenses, whether or not such tax was correctly or legally imposed or asserted by the relevant Government Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Article IX. The agreements in this Article IX shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Loans and the repayment, satisfaction or discharge of all obligations under this Agreement. Unless required by applicable Laws, ~~except in its capacity~~at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender. For purposes of this paragraph (k), ~~if any, as a~~ the term “Lender” includes any Issuing Lender.

Appears in 4 contracts

Sources: Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De)

Appears in 3 contracts

Sources: Credit Agreement (On Semiconductor Corp), Credit Agreement (On Semiconductor Corp), Credit Agreement (On Semiconductor Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any ~~Subsidiary~~ of its Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate of the Administrative Agent, as a Lender, has any Revolving Exposure, outstanding Term Loan or unused Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower (and, so long as no Event of Default has occurred which is continuing, subject to the consent of ~~the Borrower (~~Borrower, not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 60 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, in consultation with the ~~Swingline Lender and each Letter of Credit Issuer~~Borrower, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 3 contracts

Sources: Credit Agreement (DXP Enterprises Inc), Credit Agreement (DXP Enterprises Inc), Credit Agreement (DXP Enterprises Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints ~~the~~ Owl Rock Capital Corporation to serve as Administrative Agent ~~as its agent~~ and Collateral Agent under the Loan Documents, and authorizes the Administrative Agent and Collateral Agent to execute, deliver and administer the Loan Documents and to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in ~~Section 12.1~~the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the ~~Borrower~~ Borrower, any other Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful misconduct as (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and ~~non-appealable~~ nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the ~~Borrower~~ Borrower, a Lender or ~~a Lender,~~ an Issuing Bank and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, (v) the existence, value, sufficiency or collectability of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vvi) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Administrative Agent shall not be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation or determination of (x) the Revolving Exposure or the component amounts thereof, (y) the Effective Yield or (z) the terms and conditions of any Intercreditor Agreement. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person), and may act upon any such statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall ~~not incur any liability for relying thereon~~have received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject~~ The Administrative Agent shall not be responsible for the negligence or misconduct of any subagents except to the ~~appointment~~ extent that a court of competent jurisdiction determines in a final and ~~acceptance~~ nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may resign upon 30 days’ notice to the Lenders, the Issuing Banks and the Borrower. If the Administrative Agent becomes a Defaulting Lender or is an affiliate of a ~~successor Administrative Agent as provided in this paragraph~~Defaulting Lender, the Administrative Agent may ~~resign~~ be removed as the Administrative Agent hereunder at ~~any time by notifying~~ the request of the Borrower or the Required Lenders, ~~the Swingline Lender~~in each case, ~~each Letter of Credit Issuer and the Borrower~~upon 30 days’ notice. Upon receipt of any such ~~resignation~~notice of resignation or upon such removal, the Required Lenders shall have the right, with the Borrower’s consent ~~of the Borrower~~ (~~not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if~~ unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint a successor, which shall be a commercial bank or trust company with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may,~~ may (but shall not be obligated to) on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative Agent meeting the qualifications above (the date upon which ~~shall be~~ the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a ~~bank with an office in the United States,~~ Defaulting Lender or is an Affiliate of a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such ~~bank~~collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders or the retiring Administrative Agent appoint a successor Administrative Agent as provided for above. Upon the acceptance of ~~its~~ a successor’s appointment as Administrative Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative ~~Agent~~Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation ~~hereunder~~or removal hereunder and under the other Loan Documents, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (i) while it the retiring or removed Administrative Agent was acting as Administrative ~~Agent~~Agent or (ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including (a) acting as Collateral Agent or otherwise holding any collateral security on behalf of any of the Lenders, (b) in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent and (c) in respect of the matters referred to under clause (1) above. Notwithstanding anything to the contrary herein, no Disqualified Lender may be appointed as a successor Administrative Agent without the consent of the Borrower. Each Lender and each Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner, any Joint Lead Arranger or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner, any Joint Lead Arranger or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption or Incremental Facility Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. Except with respect to the ~~contrary~~ exercise of setoff rights of any Lender in accordance with Section 9.08 or with respect to a Lender’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the ~~Arrangers~~Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the ~~Co-Syndication Agents~~ Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the ~~Co-Documentation Agents named~~ Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loan Document Obligations as a credit on account of the ~~cover page~~ purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations, to have agreed to the provisions of this Article, Section 9.15 and Section 9.17. In furtherance of the foregoing and not in limitation thereof, no Swap Agreement ~~shall not have~~ or Cash Management Services the obligations under or in respect of which constitute Secured Obligations will create (or be deemed to create) in favor of any ~~duties~~ Secured Party that is a party thereto any rights in connection with the management or ~~liabilities~~ release of any Collateral or of the obligations of any Loan Party under ~~this Agreement, except in its capacity, if any, as a Lender.~~any Loan Document. By accepting the

Appears in 3 contracts

Sources: Credit Agreement (GoHealth, Inc.), Incremental Facility Agreement (GoHealth, Inc.), Incremental Facility Agreement (GoHealth, Inc.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as ~~its~~ administrative agent and collateral agent under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 12.1~~the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document or applicable law and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Borrower, any Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 12.1~~the Loan Documents) or in the absence of its own gross negligence or ~~willful misconduct~~ wilful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Borrower, a Lender or ~~a Lender~~an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The Administrative Agent also ~~may rely~~ shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and ~~shall not incur~~ may act upon any ~~liability for relying thereon~~such statement prior to receipt of written confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the ~~appointment and acceptance~~ terms of ~~a successor Administrative Agent as provided in~~ this paragraph, the Administrative Agent may resign at any time ~~by notifying~~ from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~intent to resign, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by the Borrower and such successor. ~~After~~ Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~12.5~~ 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative ~~Agent~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arrangers or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arrangers or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption or an Incremental Facility Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loan Document Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement, agreement with respect to cash management obligations or other agreement (other than the Loan Documents) the obligations under which constitute Obligations will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Hedging Agreement or other agreement shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph. Notwithstanding anything herein to the ~~contrary~~ contrary, neither the ~~Arrangers, the Co-Syndication Agents and the Co-Documentation Agents~~ Arrangers nor any Person named on the cover page of this Agreement as a Joint Syndication Agent, Joint Lead Arranger or Joint Bookrunner shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and none of the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions.

Appears in 3 contracts

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

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints ~~the~~ JPMorgan Chase Bank, N.A. (acting through such of its Affiliates or branches as it deems appropriate) to serve as Administrative Agent ~~as its agent~~ and Collateral Agent under the Loan Documents, and authorizes the Administrative Agent and Collateral Agent to execute, deliver and administer the Loan Documents and to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article VIII are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and, other than the Borrower with respect to its removal and consent rights as expressly set forth herein, none of Holdings, the Borrower or any of their respective subsidiaries shall have any rights as a third party beneficiary of any such provisions. The Administrative Agent shall also act as the “Collateral Agent” under the Loan Documents, and each of the Lenders and the Issuing Banks hereby irrevocably appoints and authorizes the Collateral Agent to act as the agent of such Lender and such Issuing Bank for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. The Collateral Agent hereby irrevocably appoints and authorizes the Common Collateral Agent to act as its sub-agent in its capacity as the “Collateral Agent” (including for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto). Each of the Secured Parties hereby irrevocably appoints the Common Collateral Agent to serve as collateral agent under the applicable Loan Documents for which it is acting as secured party, and authorizes the Common Collateral Agent to execute, deliver and administer the applicable Loan Documents and to take such actions and to exercise such powers as are delegated to the Common Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto; provided, that the foregoing shall not act to limit the right or obligation of the JPMorgan Chase Bank, N.A. as Administrative Agent or Collateral Agent to exercise its rights or discretion hereunder and/or to direct any Common Collateral Agent in connection therewith (it being understood that to the extent JPMorgan Chase Bank, N.A. as “Collateral Agent” shall be entitled or obligated to exercise such rights or discretion, it may elect to do so as “Administrative Agent” (and not Collateral Agent), notwithstanding any provision hereof to the contrary). In this connection, the Collateral Agent and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent and Collateral Agent pursuant to this Article VIII for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03 as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto. By accepting the benefits of the Collateral and the Guarantees provided under the Loan Documents, each Secured Party that is a party to any Swap Agreement the obligations under which constitute Secured Swap Obligations shall be deemed to have appointed and authorized each of the Administrative Agent and the Collateral Agent to serve as the administrative agent and the collateral agent, respectively, under the Loan Documents and to have agreed to be bound by the Loan Documents as a Secured Party thereunder. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise ~~the same~~ such rights and powers as though it were not the Administrative Agent, the terms “Lender”, “Lenders”, “Issuing Bank” and “Issuing Banks” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity, and such ~~bank~~ Person and its Affiliates may accept deposits from, own securities of, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary under~~ expressly provided for in the ~~circumstances as~~ Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in ~~Section 12.1~~its opinion (including on the advice of counsel), may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the ~~Borrower~~ Borrower, any other Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders or a Majority in Interest of the RC Facility Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~12.1~~9.02 and/or in the last paragraph of Section 7.01 (as applicable)) or in the absence of its own gross negligence or willful misconduct as (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and ~~non-appealable~~ nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice ~~thereof~~ describing such Default is given to the Administrative Agent by Holdings, the ~~Borrower~~ Borrower, a Lender or ~~a Lender,~~ an Issuing Bank and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, (v) the existence, value, sufficiency or collectability of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vvi) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Administrative Agent shall not be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation or determination of (x) the LC Exposure or Swingline Exposure or the component amounts thereof, (y) the Effective Yield or the Dollar Equivalent or (z) the terms and conditions of any Intercreditor Agreement. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Responsible Officer of such Person), and may act upon any such statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall ~~not incur any liability for relying thereon~~have received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article VIII shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject~~ The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents, except to the ~~appointment~~ extent that a court of competent jurisdiction determines in a final and ~~acceptance of a successor Administrative Agent as provided in this paragraph,~~ nonappealable judgment that the Administrative Agent ~~may resign at~~ acted with gross negligence or willful misconduct in the selection of such sub-agents. Notwithstanding the foregoing, it is acknowledged and agreed that the security interests of the Collateral Agent and the Secured Parties required to be granted hereunder and under the other Loan Documents are intended to be granted to the Common Collateral Agent as collateral agent for all Pari Passu Secured Parties (as defined in the First Lien Intercreditor Agreement) including the Secured Parties, and not to the Collateral Agent in its capacity as such hereunder. For the avoidance of doubt, such security interests will be held by the Common Collateral Agent upon the terms of the Intercreditor Agreements and the Security Documents. Any requirement of this Agreement or any ~~time~~ Security Document to deliver pledged collateral and any certificates, instruments or documents, or to grant any Liens to the Collateral Agent, or any obligation with respect to the delivery, transfer, control, notation or provision of voting rights with respect to any collateral shall be deemed satisfied by ~~notifying~~ the ~~Lenders~~delivery, transfer, control, notation, provision in favor, or granting of any Lien to, the ~~Swingline Lender~~Common Collateral Agent. The terms of the Initial Intercreditor Agreements, ~~each Letter of Credit Issuer~~ including the provisions thereof governing Single Lien Collateral, are hereby ratified and approved by the Secured Parties in all respects and the ~~Borrower. Upon any such resignation~~Secured Parties direct the Administrative Agent and Collateral Agent and/or Common Collateral Agent, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)as applicable, to ~~appoint a successor. If no successor shall have been so appointed by~~ bind itself to the ~~Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may,~~ terms thereof on behalf of the ~~Lenders~~Secured Parties. In order to give effect to the foregoing, references herein and in the other Loan Documents to the Collateral Agent hereunder (including as set forth below with respect to Single Lien Collateral) shall, unless the context otherwise requires, be deemed to include a reference to the Common Collateral Agent acting in such capacity, and the duties of the Collateral Agent (or where applicable, the ~~Swingline Lender~~ Administrative Agent) hereunder to take any action shall in such case include a corresponding duty to direct the Common Collateral Agent to take such action, to the extent applicable and ~~each Letter of Credit Issuer, appoint a successor~~ to the extent such direction is permitted (or not prohibited) by the applicable Intercreditor Agreements. The Administrative Agent ~~which~~ and Collateral Agent hereby agree to provide such direction and the Secured Parties agree that the Common Collateral Agent shall in all cases be entitled to rely on any such direction. It is acknowledged and agreed that, if in accordance with applicable Requirements of Law or the Requirements of Law governing any applicable Security Document (including foreign Requirements of Law), security interests of a ~~bank with an office~~ type (or on assets of a type) may not be (or customarily are not) granted to more than one collateral agent, trustee or similar representative (or in the ~~United States~~interests of limiting the cost of more than one grant of security, including with respect to the notarization of any relevant security documents or ~~an Affiliate~~ inscription of any such ~~bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor~~security documents before relevant public registries, including any security over shares in German limited liability companies and certain Mexican assets, such ~~successor shall succeed~~ as shares or equity interests), the security interests securing Secured Obligations may be granted to ~~and become vested with all~~ either the ~~rights, powers, privileges and duties of the retiring Administrative~~ ABL Collateral Agent, ~~and~~ the ~~retiring Administrative~~ Collateral Agent ~~shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative~~ or any Common Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 shall continue in effect for the benefit of all Applicable Secured Parties (as defined in the ABL Intercreditor Agreement), including (but not limited to) the Secured Parties, with the Security Documents creating such ~~retiring Administrative~~ security interests allocated, to the extent feasible (in the good faith determination of the Borrower) between the ABL Collateral Agent and the Collateral Agent and/or Common Collateral Agent on the basis of whether the collateral the subject thereof is expected to primarily consist of ABL Priority Collateral or Fixed Asset Priority Collateral, respectively (the collateral subject to such security interests, “Single Lien Collateral”). The security interests in Single Lien Collateral will be held by the applicable agent upon the terms of the Intercreditor Agreements and the Security Documents. In order to give effect to the foregoing, references herein and in the other Loan Documents to the Collateral Agent hereunder shall, in relation to Single Lien Collateral, unless the context otherwise requires, be deemed to include a reference to the ABL Collateral Agent, ~~its sub-agents~~ the Collateral Agent and/or any Common Collateral Agent, as applicable, acting in such capacity, and ~~their respective Related Parties in respect~~ the duties of ~~any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that~~ the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Collateral Agent or any ~~other Lender and based on~~ Common Collateral Agent hereunder to take any action shall in such ~~documents and information as it has deemed appropriate, made its own credit analysis and decision~~ case include a corresponding duty to ~~enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon~~ direct the ~~Administrative~~ ABL Collateral Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.Common Collate

Appears in 3 contracts

Sources: First Lien Credit Agreement (Clarios International Inc.), First Lien Credit Agreement (Clarios International Inc.), First Lien Credit Agreement (Clarios International Inc.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. ~~The~~ Any bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or the Issuing Bank as any other Lender and may exercise the same as though it were not the Administrative ~~Agent,~~ Agent and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any ~~Subsidiary~~ of its Subsidiaries thereof or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth for the Administrative Agent herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1)~~Lenders, and (c) except as expressly set forth herein, the Administrative Agent shall ~~not~~ have ~~any~~ no duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Company or any of its Subsidiaries that is communicated to or obtained by the bank serving as the Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) to the extent required by Section 9.02 or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The ~~Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the~~ Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other ~~than~~ than, in the case of the Administrative Agent, to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying ~~thereon~~Table of Contents thereon provided such reliance is made in good faith. ~~The~~ Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~sub-agents~~ subagents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-agent~~ subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding ~~paragraphs~~ subsections shall apply to any such ~~sub-agent~~ subagent and to the Related Parties of the Administrative Agent and any such ~~sub-agent~~subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. Subject to the appointment and acceptance of a an appropriate successor Administrative Agent as provided in this ~~paragraph~~subsection, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (not to be unreasonably ~~withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~withheld or delayed), to appoint a successor, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint with the ~~Swingline Lender and each Letter~~ consent of ~~Credit Issuer~~the Company (not to be unreasonably withheld or delayed), ~~appoint~~ a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as an Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as ~~those~~ those, if any, payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Issuing Bank or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Issuing Bank or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page~~ Table of ~~this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.~~Contents ARTICLE IX

Appears in 3 contracts

Sources: Credit Agreement (Sherwin Williams Co), Credit Agreement (Sherwin Williams Co), Credit Agreement (Sherwin Williams Co)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any ~~Subsidiary~~ of its Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Company or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower Representative or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate of the Administrative Agent, as a Lender, has any Revolving Exposure or unused Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the ~~Borrower~~Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower ~~(not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Representative, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Chicago, Illinois, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 3 contracts

Sources: Credit Agreement (Allscripts Healthcare Solutions Inc), Credit Agreement (Allscripts Healthcare Solutions Inc), Credit Agreement (Allscripts-Misys Healthcare Solutions, Inc.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Collateral Agent as the collateral agent hereunder and under the other Loan Documents and authorizes the Collateral Agent to have all the rights and benefits hereunder and thereunder (including Section 9 of the Guarantee and Security Agreement), and to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, make investments in and generally engage in any kind of business trust or other business with ~~the~~ any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent ~~hereunder~~hereunder and such Person and its Affiliates may accept fees and other consideration from any Borrower or any Subsidiary or other Affiliate thereof for services in connection with this Agreement or otherwise without having to account for the same to the other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is ~~continuing~~continuing with respect to any Borrower, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1)~~Lenders, and (c) except as expressly set forth ~~herein~~herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the~~ any Borrower or any of its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary under~~ expressly provided for herein or in the ~~circumstances as provided in Section 12.1~~other Loan Documents) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default with respect to a Borrower unless and until written notice thereof is given to the Administrative Agent by ~~the~~ such Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this ~~Agreement~~Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~herewith~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any e-mail, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the~~ The Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower (~~Borrowers not to be unreasonably ~~withheld; provided that no such consent of the Borrower shall be required~~ withheld (or, if an Event of Default has occurred and is ~~continuing~~continuing with respect to a Borrower, in consultation with such Borrower), to appoint a successor, which is a Lender. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent’s resignation shall nonetheless become effective except that in the case of any collateral security held by the Administrative Agent ~~may,~~ on behalf of the ~~Lenders~~Lenders or the Issuing Banks under any of the Loan Documents, the ~~Swingline Lender and each Letter of Credit Issuer, appoint~~ retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent ~~which~~ is appointed and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and (2) the Required Lenders shall perform the duties of the Administrative Agent (and all payments and communications provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly) until such time as the Required Lenders appoint a ~~bank with an office~~ successor agent as provided for above in ~~the United States, or an Affiliate of any such bank~~this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative ~~Agent,~~ Agent and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by ~~the~~ each Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the~~ such Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own analysis and decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ Except as otherwise provided in Section 9.02(b) with respect to ~~the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under~~ this Agreement, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents; provided that, without the prior consent of each Lender, the Administrative Agent shall not (except as provided herein or in ~~its~~ the Security Documents) release all or substantially all of the Collateral or otherwise terminate all or substantially all of the Liens under any Security Document providing for collateral security, agree to additional obligations being secured by all or substantially all of such collateral security, or alter the relative priorities of the obligations entitled to the benefits of the Liens created under the Security Documents with respect to all or substantially all of the Collateral of any Borrower, except that no such consent shall be required, and the Administrative Agent is hereby authorized, to (1) release (which such release shall be automatic and require no further action from any party) any Lien covering property that is the subject of either a disposition of property permitted hereunder or a disposition to which the Required Lenders have consented, (2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) that is designated as a “Designated Subsidiary” by the applicable Borrower or becomes an Excluded Asset or an Immaterial Subsidiary with respect to a Borrower in accordance with this Agreement or which is no longer required to be a “Subsidiary Guarantor”, so long as in the case of this clause (2): (A) immediately after giving effect to any such release (and any concurrent acquisitions of Portfolio Investments by the applicable Borrower or payment of outstanding Indebtedness of such Borrower), the Covered Debt Amount of such Borrower does not exceed the Borrowing Base of such Borrower and such Borrower delivers a certificate of a Financial Officer to such effect to the Administrative Agent, (B) either (I) the amount of any excess availability under the Borrowing Base of such Borrower immediately prior to such release is not diminished as a result of such release or (II) the Borrowing Base of such Borrower immediately after giving effect to such release is at least 110% of the Covered Debt Amount of such Borrower and (C) no Default or Event of Default has occurred and is continuing with respect to such Borrower, (3) spread Liens to any Designated Indebtedness of a Borrower or Hedging Agreement Obligations (as such terms are defined in the Guarantee and Security Agreement to which such Borrower is a party) in accordance with the Guarantee and Security Agreement to which such Borrower is a party and (4) release from any Guarantee and Security Agreement any Obligor (and any property of such Obligor) that is concurrently being joined as an Obligor under any other Guarantee and Security Agreement in connection with a transaction permitted hereunder. None of the Syndication Agent, any Documentation Agent or any Joint Lead Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, ~~if any, as a Lender~~but all such persons shall have the benefit of the indemnities provided for hereunder.

Appears in 3 contracts

Sources: Senior Secured Revolving Credit Agreement (FS Investment Corp III), Senior Secured Revolving Credit Agreement (FS Investment Corp II), Senior Secured Revolving Credit Agreement (Corporate Capital Trust, Inc.)

The Administrative Agent. (a) Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter~~ of ~~Credit Issuer~~ the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. . (b) The ~~bank serving as the~~ Administrative Agent ~~hereunder~~ shall have the same rights and powers in its capacity as a Lender hereunder as any other Lender and may exercise the same as though it the Administrative Agent were not the Administrative Agent, and ~~such bank~~ the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrower~~ any Credit Party or any Subsidiary or other Affiliate of any thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by this Agreement and the other Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1)~~Lenders, and (c) except as expressly set forth ~~herein~~herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Borrower~~ any Credit Party or any of ~~its~~ their respective Subsidiaries that is communicated to or obtained by the ~~bank serving as~~ Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if provided herein, with the consent or ~~such~~ at the request of any other specified number ~~or percentage~~ of ~~the Lenders as shall be necessary under the circumstances as provided in Section 12.1)~~ Lenders, or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this ~~Agreement~~Agreement or the other Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection ~~herewith~~herewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, the other Loan Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall not, except to the extent expressly instructed by the Required Lenders with respect to collateral security under the Security Documents, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. (e) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (f) The Administrative Agent may perform any and all of its ~~duties~~ duties, and exercise its rights and ~~powers~~ powers, by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through ~~their respective~~ its Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to ~~their respective~~ its activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. . (g) Subject to the appointment and acceptance of a successor Administrative ~~Agent~~ Agent, as provided in this paragraph, the Administrative Agent ~~may~~ ▇▇▇ resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Lenders and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Company, to appoint a ~~successor~~successor Administrative Agent. If no successor shall have been so appointed ~~by the Required Lenders~~ and shall have accepted such appointment within 30 days after ~~the~~ such retiring Administrative Agent gives notice of its resignation, then ~~the~~ such retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing ▇▇▇▇▇▇▇, appoint a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative ~~Agent hereunder~~ Agent, by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After ~~the~~ an Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. . (h) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement~~Agreement and the other Loan Documents, any related agreement or any document furnished hereunder or thereunder~~. Notwithstanding anything herein to~~ . (i) The Administrative Agent shall not be responsible for monitoring the ~~contrary the Arrangers~~existence or performance of any Secured Cash Management Agreement or Secured Swap Agreement. (j) No Person named as a Syndication Agent, ~~the Co-Syndication Agents and the~~ Co-Documentation ~~Agents named on the cover page of~~ Agent, Lead Arranger or Joint Bookrunner in this Agreement shall ~~not~~ have any ~~duties~~ rights (other than pursuant to Section 10.03(b)) or ~~liabilities~~ obligations under this Agreement or any other Loan Document in its capacity as such. (k) To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equal to any applicable withholding tax. If the IRS or any Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from any amount paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrowers and without limiting or expanding the obligation of the Borrowers to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties, additions to tax or interest thereto, together with all expenses incurred, including legal expenses and any out-of-pocket expenses, whether or not such tax was correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Article IX. The agreements in this Article IX shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Loans and the repayment, satisfaction or discharge of all obligations under this Agreement. Unless required by applicable laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender. For purposes of this paragraph (k), the term “Lender” includes any Issuing Lender. (l) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such ▇▇▇▇▇▇’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such ▇▇▇▇▇▇’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender. (m) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (l) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such ▇▇▇▇▇▇’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, ~~except~~ any Loan Document or any documents related hereto or thereto). (n) The Administrative Agent, and each Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in ~~its~~ a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if ~~any~~it extended the Loans, ~~as a Lender~~the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

Appears in 3 contracts

Sources: Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent (it being understood that reference in this Article VIII to the Administrative Agent shall be deemed to include the Collateral Agent) as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the Parent Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Parent Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Parent Borrower, a Subsidiary Term Borrower, a Foreign Subsidiary Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Parent Borrower, a Subsidiary Term Borrower or any Foreign Subsidiary Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the ~~Borrower~~Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers). Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of~~ Parent Borrower and, if applicable, the relevant Subsidiary Term Borrower ~~(not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred~~ and ~~is continuing)~~Foreign Subsidiary Borrower, to appoint a ~~successor~~successor from among the Lenders. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Parent Borrower (on behalf of itself, the Subsidiary Term Borrowers and the Foreign Subsidiary Borrowers) and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ The Lenders identified in this Agreement as the ~~contrary the Arrangers, the Co-~~Syndication ~~Agents~~ Agent and the ~~Co-~~Documentation Agents ~~named on the cover page of this Agreement~~ shall not have any ~~duties~~ right, power, obligation, liability, responsibility or ~~liabilities~~ duty under this ~~Agreement~~Agreement other than those applicable to all Lenders. Without limiting the foregoing, ~~except~~ none of the Syndication Agent or the Documentation Agents shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the Syndication Agent and the Documentation Agents as it makes with respect to the Administrative Agent or any other Lender in ~~its capacity, if any, as a Lender~~this Article VIII.

Appears in 3 contracts

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

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Parent Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, , (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent Borrower or any of ~~its~~ the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Parent Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Parent Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Parent Borrower. Upon any such resignation, the Required Lenders shall have the ~~right,~~ right to appoint a successor with the consent of the ~~Borrower (~~Parent Borrower, which consent shall not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Parent Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Parent Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 3 contracts

Sources: Credit Agreement (Knowles Electronics LLC), Credit Agreement (Knowles Electronics LLC), Credit Agreement (Knowles Electronics LLC)

The Administrative Agent. (a) Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter~~ of ~~Credit Issuer~~ the Issuing Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. . (b) The ~~bank serving as the~~ Administrative Agent ~~hereunder~~ shall have the same rights and powers in its capacity as a Lender hereunder as any other Lender and may exercise the same as though it the Administrative Agent were not the Administrative Agent, and ~~such bank~~ the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrower~~ any Credit Party or any Subsidiary or other Affiliate of any thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by this Agreement and the other Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1)~~Lenders, and (c) except as expressly set forth ~~herein~~herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Borrower~~ any Credit Party or any of ~~its~~ their respective Subsidiaries that is communicated to or obtained by the ~~bank serving as~~ Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if provided herein, with the consent or ~~such~~ at the request of any other specified number ~~or percentage~~ of ~~the Lenders as shall be necessary under the circumstances as provided in Section 12.1)~~ Lenders, or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this ~~Agreement~~Agreement or the other Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection ~~herewith~~herewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, the other Loan Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall not, except to the extent expressly instructed by the Required Lenders with respect to collateral security under the Security Documents, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. (e) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (f) The Administrative Agent may perform any and all of its ~~duties~~ duties, and exercise its rights and ~~powers~~ powers, by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through ~~their respective~~ its Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to ~~their respective~~ its activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. . (g) Subject to the appointment and acceptance of a successor Administrative ~~Agent~~ Agent, as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Lenders and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Company, to appoint a ~~successor~~successor Administrative Agent. If no successor shall have been so appointed ~~by the Required Lenders~~ and shall have accepted such appointment within 30 days after ~~the~~ such retiring Administrative Agent gives notice of its resignation, then ~~the~~ such retiring Administrative Agent may, on behalf of the Lenders and the Issuing Lenders~~, the Swingline Lender and each Letter of Credit Issuer~~, appoint a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative ~~Agent hereunder~~ Agent, by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Company and such successor. After ~~the~~ an Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. . (h) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement~~Agreement and the other Loan Documents, any related agreement or any document furnished hereunder or thereunder~~. Notwithstanding anything herein to~~ . (i) The Administrative Agent shall not be responsible for monitoring the ~~contrary the Arrangers~~existence or performance of any Secured Cash Management Agreement or Secured Swap Agreement. (j) No Person named as a Syndication Agent, ~~the Co-Syndication Agents and the~~ Co-Documentation ~~Agents named on the cover page of~~ Agent, Joint Lead Arranger or Joint Bookrunner in this Agreement shall ~~not~~ have any ~~duties~~ rights (other than pursuant to Section 10.03(b)) or ~~liabilities~~ obligations under this Agreement or any other Loan Document in its capacity as such. (k) To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equal to any applicable withholding tax. If the IRS or any Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from any amount paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrowers and without limiting or expanding the obligation of the Borrowers to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties, additions to tax or interest thereto, together with all expenses incurred, including legal expenses and any out-of-pocket expenses, whether or not such tax was correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Article IX. The agreements in this Article IX shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Loans and the repayment, satisfaction or discharge of all obligations under this Agreement. Unless required by applicable laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender. For purposes of this paragraph (k), the term “Lender” includes any Issuing Lender. (l) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender. (m) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (l) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, ~~except~~ any Loan Document or any documents related hereto or thereto). (n) The Administrative Agent, and each Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in ~~its~~ a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if ~~any~~it extended the Loans, ~~as a Lender~~the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

Appears in 3 contracts

Sources: Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De), Credit Agreement (Lamar Media Corp/De)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), ~~and~~ (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any ~~capacity~~capacity and (d) the Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders; further, without limiting the generality of the foregoing clause (d), the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Lender. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the~~ The Administrative Agent may resign at any time by ~~notifying~~ giving written notice thereof to the ~~Lenders, the Swingline Lender, each Letter of Credit Issuer~~ Lenders and the Borrower~~. Upon any~~ , such ~~resignation, the Required Lenders shall have the right, with the consent of the Borrower (not~~ resignation to be ~~unreasonably withheld; provided that no such consent~~ effective upon the appointment of ~~the Borrower shall be required~~ a successor Administrative Agent, or, if ~~an Event of Default has occurred and is continuing), to appoint a successor. If~~ no successor ~~shall have~~ Administrative Agent has been ~~so appointed by the Required Lenders and shall have accepted such appointment within 30~~ appointed, 45 days after the retiring Administrative Agent gives notice of its ~~resignation, then~~ intention to resign. If the ~~retiring~~ Administrative Agent ~~may~~(i) has become the subject of a proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or (ii) has appointed for it, without the application, approval or consent of the Administrative Agent, a receiver, trustee, examiner, liquidator or similar official, or a proceeding described in clause (i) above shall be instituted against the Administrative Agent, the Administrative Agent may be removed by written notice received by the Administrative Agent from the Required Lenders or the Borrower, such removal to be effective on the date specified by the Required Lenders or the Borrower, as applicable; provided that the Administrative Agent may not be removed unless, on or prior to the date of such removal, the Administrative Agent (in its individual capacity) acting as Lender is relieved of all of its duties as Lender, pursuant to documentation reasonably satisfactory to the Administrative Agent. Upon any resignation or removal of the Administrative Agent, the Required Lenders shall have the right (with, so long as no Event of Default under Section 7.01(b), Section 7.01(g) or Section 7.01(h) exists, the consent of the Borrower, which shall not be unreasonably withheld) to appoint, on behalf of the Borrower and the Lenders, a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the ~~Swingline~~ Required Lenders within 30 days after the resigning Administrative Agent’s giving notice of its intention to resign, then the resigning Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a successor Administrative Agent. Notwithstanding the previous sentence, the Administrative Agent may at any time (without the consent of any Lender ~~and each Letter~~ but with, so long as no Event of ~~Credit Issuer~~Default under Section 7.01(b), Section 7.01(g) or Section 7.01(h) exists, the consent of the Borrower, which shall not be unreasonably withheld or delayed) appoint any of its Affiliates which is a commercial bank as a successor Administrative Agent ~~which~~ hereunder. If the Administrative Agent has resigned or been removed and no successor Administrative Agent has been appointed, the Lenders may perform all the duties of the Administrative Agent hereunder and the Borrower shall make all payments in respect of the Obligations to the applicable Lenders and for all other purposes shall deal directly with the Lenders. No successor Administrative Agent shall be deemed to be appointed hereunder until such Administrative Agent has accepted the appointment. Any such successor Administrative Agent shall be a commercial bank ~~with~~ having capital and retained earnings of at least $100,000,000 and an office in ~~the United States~~New York, ~~or an Affiliate of any such bank~~New York. Upon the acceptance of ~~its~~ any appointment as Administrative Agent hereunder by a ~~successor~~successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the ~~retiring~~ resigning or removed Administrative Agent. Upon the effectiveness of the resignation or removal of the Administrative Agent, ~~and~~ the ~~retiring~~ resigning or removed Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (i) while it was acting as Administrative Agent and (ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and ~~letters of credit and~~ not ~~instruments~~ investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the ~~contrary~~ extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. The Lenders are not partners or co-venturers, and no Lender shall be liable for the ~~Arrangers~~acts or omissions of, or (except as otherwise set forth herein in case of the ~~Co-Syndication Agents~~ Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the ~~Co-Documentation Agents named on~~ date such principal or interest has become due and payable pursuant to the ~~cover page~~ terms of this ~~Agreement shall not have any duties or liabilities under this~~ Agreement~~, except in its capacity, if any, as a Lender~~.

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Southwestern Energy Co), Term Loan Credit Agreement (Southwestern Energy Co)

Appears in 2 contracts

Sources: Credit Agreement (SVMK Inc.), Credit Agreement (SVMK Inc.)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Lenders hereby irrevocably appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. as the Administrative Agent ~~as its agent~~ and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. Except, in each case, as set forth in the sixth paragraph of this Article, the provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower shall not have rights as a third party beneficiary of any of such provisions. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent~~Agent and the term “Lender” or “Lenders” shall, ~~and such bank~~ unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent: (a) ~~the Administrative Agent~~ shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative Agent~~ shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.2 or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth ~~herein~~herein and in the other Loan Documents, ~~the Administrative Agent shall not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its ~~Subsidiaries~~ Affiliates that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.2) or (ii) in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this ~~Agreement~~Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Swingline Lender, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States; provided that, in the event that such successor or Administrative Agent appointed by the Required Lenders is not one of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., ▇▇▇▇▇▇▇ Sachs Bank USA, Bank of America, N.A., Barclays Bank PLC or JPMorgan Chase Bank, N.A., or any of their respective affiliates, and so long as no Event of Default shall have occurred and be continuing, the Borrower shall have the right to consent to such successor Administrative Agent (such consent not to be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, ~~the Swingline Lender and each Letter of Credit Issuer,~~ appoint a successor Administrative Agent ~~which shall be a bank with an office in~~ meeting the ~~United States, or an Affiliate of any such bank~~qualifications set forth above. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Article). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.3 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything~~ Anything herein to the contrary notwithstanding, none of the ~~Arrangers~~Arrangers shall have any powers, ~~the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of~~ duties or responsibilities under this Agreement ~~shall not have~~ or any ~~duties or liabilities under this Agreement~~of the other Loan Documents, except in its capacity, ~~if any~~as applicable, as the Administrative Agent or a ~~Lender~~Lender hereunder. The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion to release any Guarantor from its obligations under any Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor from its obligations under any Guaranty pursuant to this paragraph.

Appears in 2 contracts

Sources: Revolving Credit Agreement, Revolving Credit Agreement (Zynga Inc)

Appears in 2 contracts

Sources: Credit Agreement (Advance Auto Parts Inc), Credit Agreement (Advance Auto Parts Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints ~~the~~ JPMorgan Chase Bank, N.A. to serve as Administrative Agent ~~as its agent~~ and Collateral Agent under the Loan Documents, and authorizes the Administrative Agent and Collateral Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, Intermediate Holdings, the Borrowers or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~the~~ Holdings, Intermediate Holdings, any Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in ~~Section 12.1~~the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Borrower~~ Holdings, Intermediate Holdings, any Borrower, any other Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~the Borrower~~ Holdings, Intermediate Holdings, any Borrower, a Lender or ~~a Lender,~~ an Issuing Bank and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vvi) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person~~, and shall not incur any liability for relying thereon~~). The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ Intermediate Holdings or a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign ~~at any time by notifying~~ upon 30 days’ notice to the Lenders, the ~~Swingline Lender~~Issuing Banks and Holdings. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, ~~each Letter~~ the Administrative Agent may be removed as the Administrative Agent hereunder at the request of ~~Credit Issuer~~ Holdings and the ~~Borrower~~Required Lenders. Upon receipt of any such ~~resignation~~notice of resignation or upon such removal, the Required Lenders shall have the right, with ~~the~~ Holdings’ consent ~~of the Borrower~~ (~~not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if~~ unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may,~~ may (but shall not be obligated to) on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be ~~a bank~~ an Approved Bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such ~~bank~~Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and Holdings may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of Holdings, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of ~~its~~ a successor’s appointment as Administrative Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative ~~Agent~~Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After the retiring or removed Administrative Agent’s resignation ~~hereunder~~or removal hereunder and under the other Loan Documents, the provisions of this Article and Section ~~12.5~~ 9.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it the retiring or removed Administrative Agent was acting as Administrative Agent. Each Lender and each Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment or Refinancing Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Lender shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Lenders in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Lenders at such sale or other disposition. Each Lender, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations, to have agreed to the foregoing provisions. Notwithstanding anything herein to the ~~contrary the Arrangers~~contrary, ~~the Co-Syndication Agents and the Co-Documentation Agents~~ neither any Joint Bookrunner nor any Person named on the cover page of this Agreement as a Lead Arranger, a Syndication Agent or a Co- Documentation Agent shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender.~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder, including under Section 9.03, fully as if named as an indemnitee or indemnified person therein and irrespective of whether the indemnified losses, claims, damages, liabilities and/or related expenses arise out of, in connection with or as a result of matters arising prior to, on or after the effective date of any Loan Document. To the extent required by any applicable Requirements of Law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.17, each Lender shall indemnify the Administrative Agent against, and shall make payable in respect thereof within 30 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the U.S. Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this paragraph. The agreements in this paragraph shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender and the repayment, satisfaction or discharge of all other obligations under any Loan Document. Each party to this Agreem

Appears in 2 contracts

Sources: First Lien Credit Agreement (Endeavor Group Holdings, Inc.), First Lien Credit Agreement (Endeavor Group Holdings, Inc.)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and on behalf of the Holders of Obligations and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, by the Disbursement Agreement and by any other Loan Document, together with such actions and powers as are reasonably incidental thereto, with the Administrative Agent being entitled to make all decisions in its sole discretion unless, by the terms hereof or thereof, such decision requires the approval of all or any of the Lenders, or the Administrative Agent, pursuant to the following, seeks authorization from all or any of the Lenders, as applicable. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein, in the Disbursement Agreement and in the other Loan Documents. Without limiting the generality of the foregoing, , (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, , (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), ~~and~~ and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the ~~Borrower~~ Borrower, any Subsidiary or any ~~of its Subsidiaries~~ Credit Party that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it under this Agreement, the Disbursement Agreement or any other Loan Document with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings or the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire ~~into~~ into: (i) any statement, warranty or representation made in or in connection with this Agreement, , (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, , (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, , (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document~~, or~~ , (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent, or (vi) the perfection or priority of any of the Liens on any of the Collateral. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Holdings or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~the Swingline Lender, each Letter of Credit Issuer~~ Holdings and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, ~~the Swingline Lender and each Letter of Credit Issuer,~~ appoint a successor Administrative ~~Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank~~Agent. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by Holdings or the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ Except with respect to the ~~contrary the Arrangers~~exercise of setoff rights of any Lender in accordance with Section 9.08, the Coproceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against Holdings or the Borrower or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders are not partners or co-~~Syndication Agents~~ venturers, and no Lender shall be liable for the ~~Co-Documentation Agents named~~ acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~cover page~~ Lenders to (i) enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement ~~shall not have any duties or liabilities~~ and (ii) exercise such other rights and remedies granted to the Lenders under ~~this Agreement, except in~~ the Loan Documents. In its capacity, the Administrative Agent is a “representative” of the Holders of Obligations within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Obligations (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Holders of Obligations upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of Obligations any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Holders of Obligations. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) upon termination of the Commitments and payment and satisfaction of all of the Obligations (other than contingent indemnity obligations and Obligations in respect of Swap Agreements) at any time arising under or in respect of this Agreement or the Loan Documents or the transactions contemplated hereby or thereby; (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if ~~any~~approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document, or consented to in writing by the Required Lenders or all of the Lenders, as ~~a Lender~~applicable, and upon at least five Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Holders of Obligations herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent shall not be required to execute any such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of Holdings the Borrower or any Subsidiary in respect of) all interests retained by Holdings, the Borrower or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. The Lenders authorize the Administrative Agent to enter into and perform under the Disbursement Agreement on behalf of the Lenders, including, without limitation, taking all actions required by or permitted to be taken by the Administrative Agent on behalf of the Lenders thereunder. Each Lender agrees to be bound by the terms of the Disbursement Agreement.

Appears in 2 contracts

Sources: Credit Agreement, Credit Agreement (Florida Gaming Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Catalytica, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Catalytica, the Borrower or any of ~~its~~ the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Catalytica, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if~~ approval, unless an Event of Default has occurred ~~and~~ or is continuing), of the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Sources: Effectiveness Agreement (Catalytica Inc), Credit Agreement (Catalytica Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as ~~its~~ administrative agent and collateral agent under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 12.1~~the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Bankruptcy Event or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Bankruptcy Event, and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the ~~Borrower~~ Borrower, any Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 12.1~~the Loan Documents) or in the absence of its own gross negligence or ~~willful misconduct~~ wilful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the ~~Borrower~~ Borrower, a Lender or ~~a Lender~~an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The Administrative Agent also ~~may rely~~ shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and ~~shall not incur~~ may act upon any ~~liability for relying thereon~~such statement prior to receipt of written confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel for Holdings or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the ~~appointment and acceptance~~ terms of ~~a successor Administrative Agent as provided in~~ this paragraph, the Administrative Agent may resign at any time ~~by notifying~~ from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~intent to resign, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by Holdings and the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by Holdings, the Borrower and such successor. ~~After~~ Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~12.5~~ 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-agents~~ subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative ~~Agent~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arrangers or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arrangers or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to the First Refinancing Facility Agreement and funding or continuing its Loans on the First Refinancing Facility Agreement Effective Date, or delivering its signature page to an Assignment and Assumption or an Incremental Facility Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Original Effective Date or the First Refinancing Facility Agreement Effective Date, as the case may be. No Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loan Document Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement, agreement with respect to cash management obligations or other agreement (other than the Loan Documents) the obligations under which constitute Obligations will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Hedging Agreement or other agreement shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph. Notwithstanding anything herein to the ~~contrary~~ contrary, neither the ~~Arrangers, the Co-Syndication Agents and the Co-Documentation Agents~~ Arrangers nor any Person named on the cover page of this Agreement as a Syndication Agent or a Documentation Agent shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions (other than the Borrower’s consultation right set forth in the sixth paragraph of this Article VIII).

Appears in 2 contracts

Sources: Refinancing Facility Agreement (SVMK Inc.), Refinancing Facility Agreement (SVMK Inc.)

The Administrative Agent. (a) Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. . (b) The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ai) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bii) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (ciii) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~the~~ either Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (iv) any statement, warranty or representation made in or in connection with this Agreement, (iiw) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (~~iii~~x) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (ivy) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (vz) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (e) The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (f) Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. . (g) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Sources: Credit Agreement (Citrix Systems Inc), Credit Agreement (Citrix Systems Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not~~ Borrower, to ~~be unreasonably withheld~~appoint a successor; provided that no such ~~consent of~~ consultation with the Borrower shall be required if ~~an Event of~~ a Default has occurred and is continuing~~), to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~under the Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Sources: Credit Agreement (Cumulus Media Inc), Amendment and Restatement Agreement (Cumulus Media Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the~~ any Borrower or any ~~Subsidiary~~ of their Subsidiaries or any of their other ~~Affiliate thereof~~ Affiliates as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the~~ any Borrower or any of ~~its~~ their Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the immediate officers of the Administrative Agent responsible for this Agreement by ~~the~~ a Borrower or a ~~Lender~~Lender and is called a "notice of default", and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate, as a Lender, has any Revolving Exposure or unused Revolving Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the ~~Borrower~~Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right~~right to appoint a successor, with the prior written consent of the ~~Borrower~~ Borrowers (~~not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if~~ unless an Event of Default ~~has~~ shall have occurred ~~and~~ which is continuing, in which event the Borrowers' consent shall not be required)~~, to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York City, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Sources: Credit Agreement (Smith International Inc), Credit Agreement (Smith International Inc)

Appears in 2 contracts

Sources: Term Loan Credit Agreement (ITC Holdings Corp.), Term Loan Credit Agreement (ITC Holdings Corp.)

The Administrative Agent. (a) Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. . (b) The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ai) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bii) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (ciii) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (e) The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (f) Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. . (g) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. (h) The Administrative Agent shall be permitted from time to time to designate one of its Affiliates to perform the duties to be performed by the Administrative Agent hereunder with respect to Loans and Borrowings denominated in Foreign Currencies. ~~Notwithstanding anything herein~~ The provisions of this Article VIII shall apply to any such Affiliate mutatis mutandis. All provisions of this Article VIII relating to the ~~contrary~~ Administrative Agent shall be equally applicable to the ~~Arrangers~~Collateral Agent mutatis mutandis. Without limiting the foregoing, if any Collateral or any Subsidiary is sold in a transaction permitted hereunder (excluding sales to the Borrower or a Subsidiary thereof other than sales comprising part of a Permitted Securitization made to a Subsidiary which is an SPC), (a) such Collateral and the assets of such Subsidiary shall be sold free and clear of the Liens created by the Security Documents and (b) in the case of such a sale of a Subsidiary Guarantor, such Subsidiary Guarantor and its subsidiaries shall be released from the Subsidiary Guaranty and, in each case, the ~~Co-Syndication Agents~~ Administrative Agent, the Collateral Agent and the ~~Co-Documentation Agents named~~ UK Security Trustee shall be authorized to take any actions deemed appropriate in order to effect the foregoing. Each of the Administrative Agent, the Collateral Agent and the UK Security Trustee shall also be authorized, on behalf of the ~~cover page~~ Lenders, to (i) enter into such amendments of ~~this Agreement shall~~ the Security Documents and to enter into such agreements (including intercreditor agreements but excluding any releases of Collateral not ~~have any duties~~ otherwise authorized hereby) as, in either case, it deems necessary or ~~liabilities under this Agreement~~appropriate in connection with a Permitted Securitization and (ii) execute releases of Collateral being transferred from the Borrower or a Subsidiary to the Borrower or a Subsidiary in a transaction permitted hereby and in connection with which such Collateral is substantially contemporaneously repledged (with the same priority as the released pledge or security interest) to the Administrative Agent, ~~except in its capacity, if any~~the Collateral Agent or the UK Security Trustee, as applicable, for the benefit of the Secured Creditors. Additionally, in connection with the granting of Liens of the type described in clauses (i), (j), (m) or (s) of Section 6.02 by the Borrower or any of its Subsidiaries, each of the Administrative Agent, the Collateral Agent and the UK Security Trustee is authorized to take any actions deemed appropriate by it in connection therewith (including, without limitation, the execution of appropriate lien releases or lien subordination agreements in favor of the holder or holders of such Liens, in either case solely with respect to the item or items of equipment or other assets subject to such Liens. (i) The Administrative Agent shall, where a ~~Lender~~Lender has made a confirmation in accordance with Section 2.18(s) by providing notification to the Administrative Agent, use commercially reasonable efforts to send to the Borrowers a copy of such notification in sufficient time to enable the Borrowers to comply with their obligations under Sections 2.18(r) and (t).

Appears in 2 contracts

Sources: Credit Agreement (Manitowoc Co Inc), Credit Agreement (Manitowoc Co Inc)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or ~~document,~~ document or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Swingline Lender, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, ~~the Swingline Lender and each Letter of Credit Issuer,~~ appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ None of the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacityLenders, if any, identified in this Agreement as an Arranger, Syndication Agent or Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Arranger, Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Revolving Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.

Appears in 2 contracts

Sources: 364 Day Revolving Credit Agreement (Dentsply International Inc /De/), 364 Day Revolving Credit Agreement (Dentsply International Inc /De/)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, ~~with~~ subject to the ~~consent of~~ approval by the Borrower (which approval shall not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender~~ Issuing Bank and ~~each Letter of Credit Issuer~~in consultation with the Borrower, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Sources: Credit Agreement (Vestar Associates Corp Iii), Credit Agreement (St John Knits International Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with ~~the consent of~~ the Borrower (~~not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if~~ unless an Event of Default has occurred and is continuing), to appoint a ~~successor~~successor from among the other Lenders. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

Sources: Credit Agreement (Telecorp Communications Inc), Credit Agreement (Telecorp PCS Inc /Va/)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any ~~Subsidiary~~ of its Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate of the Administrative Agent, as a Lender, has any Revolving Exposure, outstanding Advance Loan or unused Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, extent to which it will continue as a ~~Lender~~Lender or assign or otherwise transfer its rights, interests and obligations hereunder.

Appears in 2 contracts

Sources: Credit Agreement (Solaris Oilfield Infrastructure, Inc.), Credit Agreement (Solaris Oilfield Infrastructure, Inc.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as ~~its~~ administrative agent and collateral agent under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The ~~bank~~ Lenders hereby authorize the Administrative Agent to enter into any Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement in the event that any such Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable, is required to be executed and delivered pursuant to this Agreement and each Lender hereby agrees, upon execution and delivery of such Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable, to be bound by and take no actions contrary to the provisions of such Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable. The Lenders hereby authorize the Administrative Agent to negotiate the terms of, and execute and deliver, any Foreign Pledge Agreement, any Foreign Security Agreement or any other Security Document. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 12.1~~the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Borrower, any Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~Section 12.1~~the Loan Documents) or in the absence of its own gross negligence or ~~willful misconduct~~ wilful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Borrower, a Lender or ~~a Lender~~an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The Administrative Agent also ~~may rely~~ shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and ~~shall not incur~~ may act upon any ~~liability for relying thereon~~such statement prior to receipt of written confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the ~~appointment and acceptance~~ terms of ~~a successor Administrative Agent as provided in~~ this paragraph, the Administrative Agent may resign at any time ~~by notifying~~ from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the ~~right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing),~~ right to appoint a successor, which successor, so long as no Event of Default shall have occurred and be continuing, shall be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Lenders and approved by the Borrower (to the extent required) and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~intent to resign, then the retiring Administrative Agent ~~may~~may (with the consent of the Borrower, such consent not to be unreasonably withheld or delayed), on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank~~Agent. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by the Borrower and such successor. ~~After~~ Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~12.5~~ 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative ~~Agent~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement on the Effective Date, or delivering its signature page to an Assignment and Assumption or an Incremental Facility Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date or the Closing Date. No Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loan Document Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Obligations will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Hedging Agreement shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph. Notwithstanding anything herein to the ~~contrary~~ contrary, neither the ~~Arrangers, the Co-Syndication Agents and the Co-Documentation Agents~~ Arranger nor any Person named on the cover page of this Agreement as a Co-Syndication Agent or a Co-Documentation Agent shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. Except as set forth in the sixth paragraph of this Article, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and, except as set forth in the sixth paragraph of this Article, none of the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions.

Appears in 2 contracts

Sources: Credit Agreement (Costar Group Inc), Credit Agreement (Costar Group Inc)

Appears in 2 contracts

Sources: Credit Agreement (J C Penney Co Inc), Credit Agreement (J C Penney Co Inc)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof,~~ of the Loan Documents together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.2), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.2) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in ~~Article 6~~ Section 4 or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~the Swingline Lender,~~ each ~~Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.3 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ To the ~~contrary the Arrangers~~extent required by any applicable law, the ~~Co-Syndication Agents and~~ Administrative Agent may withhold from any interest payment to any Lender or the ~~Co-Documentation Agents named on~~ Issuing Bank an amount equivalent to any applicable withholding tax. If the ~~cover page~~ Internal Revenue Service or any other governmental authority asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of ~~this Agreement shall~~ any Lender or the Issuing Bank because the appropriate form was not ~~have~~ delivered or was not properly executed or because such Lender or the Issuing Bank failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding tax ineffective or for any ~~duties~~ other reason, such Lender or ~~liabilities under this Agreement, except in its capacity, if any~~the Issuing Bank, as ~~a Lender~~applicable, shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.

Appears in 2 contracts

Sources: Credit Agreement (GNC Acquisition Holdings Inc.), Credit Agreement (General Nutrition International Inc)

The Administrative Agent. (a) Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. . (b) The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ai) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bii) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (ciii) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (e) The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (f) Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. . (g) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. (h) The Administrative Agent shall be permitted from time to time to designate one of its Affiliates to perform the duties to be performed by the Administrative Agent hereunder with respect to Loans and Borrowings denominated in Foreign Currencies. ~~Notwithstanding anything herein~~ The provisions of this Article VIII shall apply to any such Affiliate mutatis mutandis. All provisions of this Article VIII relating to the ~~contrary~~ Administrative Agent shall be equally applicable to the ~~Arrangers~~Collateral Agent mutatis mutandis. Without limiting the foregoing, if any Collateral or any Subsidiary is sold in a transaction permitted hereunder (excluding sales to the Borrower or a Subsidiary thereof other than sales comprising part of a Permitted Securitization made to a Subsidiary which is an SPC), (a) such Collateral and the assets of such Subsidiary shall be sold free and clear of the Liens created by the Security Documents and (b) in the case of such a sale of a Subsidiary Guarantor, such Subsidiary Guarantor and its subsidiaries shall be released from the Subsidiary Guaranty and, in each case, the ~~Co-Syndication Agents~~ Administrative Agent, the Collateral Agent and the ~~Co-Documentation Agents named~~ UK Security Trustee shall be authorized to take any actions deemed appropriate in order to effect the foregoing. Each of the Administrative Agent, the Collateral Agent and the UK Security Trustee shall also be authorized, on behalf of the ~~cover page~~ Lenders, to enter into such amendments of ~~this Agreement shall~~ the Security Documents and to enter into such agreements (including intercreditor agreements but excluding any releases of Collateral not ~~have~~ otherwise authorized hereby) as, in either case, it deems necessary or appropriate in connection with a Permitted Securitization. Additionally, in connection with the granting of Liens of the type described in clauses (i), (j), (m) or (s) of Section 6.02 by the Borrower or any ~~duties~~ of its Subsidiaries, each of the Administrative Agent, the Collateral Agent and the UK Security Trustee is authorized to take any actions deemed appropriate by it in connection therewith (including, without limitation, the execution of appropriate lien releases or ~~liabilities under this Agreement~~lien subordination agreements in favor of the holder or holders of such Liens, ~~except~~ in ~~its capacity, if any, as a Lender~~either case solely with respect to the item or items of equipment or other assets subject to such Liens.

Appears in 2 contracts

Sources: Credit Agreement (Manitowoc Co Inc), Credit Agreement (Manitowoc Co Inc)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender~~ Lenders and ~~each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints JPMCB as the Administrative Agent ~~as its agent~~ (and JPMCB hereby accepts such appointment) and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. Except, in each case, as set forth in the sixth paragraph of this Article, the provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and no Loan Party shall have rights as a third party beneficiary of any of such provisions. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent~~Agent and the term “Lender” or “Lenders” shall, ~~and such bank~~ unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with ~~the Borrower~~ Parent or any Subsidiary of Parent or other Affiliate thereof as if it were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent: (a) ~~the Administrative Agent~~ shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative Agent~~ shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.2 or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth ~~herein~~herein and in the other Loan Documents, ~~the Administrative Agent shall not~~ have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its ~~Subsidiaries~~ Affiliates that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.2) or (ii) in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction by in a final and non-appealable ~~judgment~~decision). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice ~~thereof~~ thereof, which is identified as a notice of default, is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this ~~Agreement~~Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~document (including, for the avoidance of doubt, in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any ~~and~~ or all of its duties and exercise any or all of its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject to the appointment and acceptance of a successor~~ The Administrative Agent ~~as provided in this paragraph,~~ shall have the ~~Administrative Agent may~~ right to resign at any time by ~~notifying~~ giving prior written notice thereof to the ~~Lenders, the Swingline Lender, each Letter of Credit Issuer~~ Lenders and the Borrower. The Administrative Agent shall have the right to appoint a financial institution to act as the Administrative Agent hereunder, subject to the reasonable satisfaction of the Borrower and the Required Lenders, and the Administrative Agent’s resignation shall become effective on the earliest of (i) 30 days after delivery of the notice of resignation, (ii) the acceptance of such successor Administrative Agent by the Borrower and the Required Lenders or (iii) such other date, if any, agreed to by the Borrower and the Required Lenders. Upon any such notice of resignation, if a successor Administrative Agent has not already been appointed by the retiring Administrative Agent, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a ~~successor~~successor Administrative Agent. If ~~no successor shall have been so appointed by~~ neither the Required Lenders nor the Administrative Agent have appointed a successor Administrative Agent, the Required Lenders shall be deemed to have succeeded to and ~~shall have accepted such appointment within 30 days after~~ become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a~~ Agent. Any successor Administrative Agent ~~which~~ shall be a ~~bank~~ financial institution with an office in the United States or an Affiliate of any such financial institution with an office in the United States~~, or an Affiliate of any such bank~~. Upon the acceptance of ~~its~~ any appointment as Administrative Agent hereunder by a ~~successor~~successor Administrative Agent, ~~such~~ that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent,~~ Agent and the retiring Administrative Agent shall promptly transfer to such successor Administrative Agent all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Administrative Agent under the Loan Documents, whereupon such retiring Administrative Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After ~~the~~ any retiring Administrative Agent’s resignation ~~hereunder~~hereunder as Administrative Agent, the provisions of this Article IX and Section ~~12.5~~ 10.3 shall ~~continue in effect for the~~ inure to its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of~~ as to any actions taken or omitted to be taken by ~~any of them~~ it while it was ~~acting~~ Administrative Agent hereunder. Any resignation of JPMCB or its successor as the Administrative ~~Agent~~Agent pursuant to this Article IX shall also constitute the resignation of JPMCB or its successor as Issuing Bank. After such resignation of JPMCB as an Issuing Bank hereunder, JPMCB shall remain a party hereto to the extent that Letters of Credit issued by it remain outstanding and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such resignation, but shall not be required to issue additional Letters of Credit. Each Lender ~~acknowledges~~ and ~~agrees~~ each Issuing Bank represents and warrants as of the date it becomes a Lender or Issuing Bank that (i) it is such Lender’s or Issuing Bank’s intention that the ~~extensions~~ Loan Documents set forth the terms of ~~credit made hereunder are~~ a commercial ~~loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents that~~ lending facility, (ii) it is engaged in making, acquiring or holding commercial loans and in providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, in each case in the ordinary course of ~~its business~~ business, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument (and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing), (iii) it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger, or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder and (iv) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything~~ Anything herein to the contrary ~~the Arrangers~~notwithstanding, ~~the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of~~ no Arranger or syndication agent shall have any powers, duties or responsibilities under this Agreement ~~shall not have~~ or any ~~duties or liabilities under this Agreement~~of the other Loan Documents, except in its capacity, ~~if any~~as applicable, as the Administrative Agent or a Lender hereunder. Subject to Section 10.2, without further written consent or authorization from any Lender., the Administrative Agent may execute any documents or instruments necessary to release any Guarantor from the Guaranty pursuant to Section 10.17 or with respect to which Required Lenders (or such other Lenders as may be required to give such consent under Section 10.2) have otherwise consented. Anything contained in any of the Loan Documents to the contrary notwithstanding, each Loan Party, the Administrative Agent and each Lender hereby agree that no Lender shall have any right individually to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the Lenders in accordance with the terms hereof. Notwithstanding anything to the contrary contained herein or any other Loan Document, when all Obligations (other than contingent indemnification obligations for which no claim has been made) have been paid in full, all Commitments have terminated or expired and all Letters of Credit shall have terminated or expired without any pending drawing thereon (or the outstanding Letters of Credit have been cash collateralized in an amount equal to 103% of all Letter of Credit Usage at such time in a manner satisfactory to the applicable Issuing Banks), upon request of the Borrower, the Administrative Agent shall (without notice to, or vote or consent of, any Lender) take such actions as shall be required to release all Guaranties provided for in any Loan Document. Any such release of any Guaranty shall be deemed subject to the provision that such Guaranty shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made. Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments, (ii) the prohibited transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable so as to exempt from the prohibitions of Section 406 of ERISA and Section 4975 of the Code such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed b

Appears in 2 contracts

Sources: Revolving Credit and Guaranty Agreement (Coupang, Inc.), Revolving Credit and Guaranty Agreement (Coupang, Inc.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Restricted Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), ~~and~~ and, (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Borrower~~ any Loan Party or any ~~of its Subsidiaries~~ Restricted Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful misconduct as determined by a final nonappealable judgment of a court of competent ~~jurisdiction by a final and non-appealable judgment~~jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vvi) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Collateral Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duly or obligation to take any further action under any Collateral Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article, Section 2.17(d) and Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative ~~Agent~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the U.S. securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder or ~~thereunder~~thereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the UCC. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. Notwithstanding anything herein to the ~~contrary~~ contrary, none of the ~~Arrangers~~Syndication Agent, ~~the Co-Syndication Agents and the Co-Documentation Agents named~~ Bookrunners or Lead Arrangers listed on the cover page of hereof shall have any powers, duties or responsibilities under this Agreement ~~shall not have~~ or any ~~duties or liabilities under this Agreement~~of the other Loan Documents, except in its capacity, ~~if any~~as applicable, as the Administrative Agent, a ~~Lender~~Lender or an Issuing Bank hereunder.

Appears in 2 contracts

Sources: Credit Agreement (Groupon, Inc.), Credit Agreement (Groupon, Inc.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and on behalf of the Holders of Secured Obligations and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent~~Agent or (vi) the perfection or priority of any of the Liens on any of the Collateral. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~sub-agents~~ subagents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-agent~~ subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~sub-agent~~ subagent and to the Related Parties of the Administrative Agent and any such ~~sub-agent~~subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~the Swingline Lender,~~ each ~~Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative ~~Agent which~~ Agent; provided, that if an Event of Default has occurred and is continuing, no consent of the Borrower shall be ~~a bank with an office in the United States, or an Affiliate of any such bank~~required. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ None of the Lenders, if any, identified in this Agreement as a Co-Syndication Agent or a Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the ~~contrary the Arrangers, the~~ relevant Lenders in their capacity as Co-Syndication Agents or Documentation Agent as it makes with respect to the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender, including each Issuing Bank, in accordance with Section 9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or with respect to any Credit Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Credit Documents, with the consent of the Administrative Agent. The Lenders, including each Issuing Bank, are not partners or co-venturers, and no Lender shall be liable for the ~~Co-Documentation Agents named~~ acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~cover page~~ Lenders to enforce the payment of the principal of and interest on any Loan or any Letter of Credit after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Holders of Secured Obligations within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Secured Obligations (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Holders of Secured Obligations upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of Secured Obligations any Credit Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Holders of Secured Obligations. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) upon termination of the Commitments and payment and satisfaction of all of the Obligations (other than contingent indemnity obligations and Obligations in respect of Hedging Agreements and Banking Services Agreements) at any time arising under or in respect of this Agreement or the Credit Documents or the Transactions; (ii) as permitted by, but only in accordance with, the terms of the applicable Credit Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Credit Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Holders of Secured Obligations herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent shall not ~~have~~ be required to execute any ~~duties~~ such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or ~~liabilities under this Agreement~~create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, ~~except~~ and (ii) such release shall not in ~~its capacity~~any manner discharge, ~~if any~~affect or impair the Obligations or any Liens upon (or obligations of the Borrower or any Subsidiary in respect of) all interests retained by the Borrower or any Subsidiary, ~~as a Lender~~including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral.

Appears in 2 contracts

Sources: Credit Agreement (Inergy L P), Credit Agreement (Inergy Holdings, L.P.)

The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase Bank, N.A. is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter~~ assignee of ~~Credit Issuer~~ any such Lender hereby irrevocably ~~appoints the Administrative Agent as its agent and~~ authorizes the Administrative Agent to take such actions on ~~its~~ behalf of such Lender or assignee and to exercise such powers as are specifically delegated to the Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank serving as the~~ Administrative Agent ~~hereunder shall have~~ is hereby expressly authorized by the ~~same rights and powers in its capacity as a Lender as~~ Lenders, without hereby limiting any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoingimplied authority, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Borrower of any Event of Default specified in this Agreement of which the Administrative Agent ~~shall not be subject to any fiduciary or other implied duties, regardless of whether a Default~~ has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise actual knowledge acquired in ~~writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1),~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth herein,~~ received by the Administrative Agent. Neither the Administrative Agent ~~shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or~~ nor any of its ~~Subsidiaries that is communicated~~ directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or ~~obtained~~ to make any inquiry concerning the performance or observance by the ~~bank serving as Administrative Agent or~~ Borrower of any of ~~its Affiliates~~ the terms, conditions, covenants or agreements contained in ~~any capacity~~this Agreement. The Administrative Agent shall not be ~~liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of~~ responsible to the Lenders ~~as shall be necessary under~~ for the circumstances as provided in Section 12.1) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lenderdue execution, ~~and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement~~genuineness, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, ~~enforceability,~~ enforceability or effectiveness ~~or genuineness~~ of this Agreement or any other ~~agreement, instrument~~ instruments or ~~document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent~~agreements. The Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereunder, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~person or persons. ~~The~~ Neither the Administrative Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by ~~it to be made by~~ any other Lender or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or in connection herewith. The Administrative Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of Lenders hereby acknowledge that the Administrative Agent ~~and~~ shall be under no duty to take any ~~such sub-agent, and~~ discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall ~~apply~~ be requested in writing to ~~their respective activities in connection with~~ do so by the ~~syndication of the credit facilities provided for herein as well as activities as Administrative Agent~~Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided ~~in this paragraph~~below, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Swingline Lender, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (which consent shall not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, ~~the Swingline Lender and each Letter of Credit Issuer,~~ appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of ~~its~~ any appointment as Administrative Agent hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent,~~ Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder~~. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor~~. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. With respect to the Loans made by it hereunder, JPMorgan Chase Bank in its individual capacity and not as Administrative Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Administrative Agent, and the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent. Each Lender agrees (a) to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees, that shall not have been reimbursed by the Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by or asserted against it in its capacity as the Administrative Agent or any of them in any way relating to or arising out of this Agreement or any action taken or omitted by it or any of them under this Agreement, to the extent the same shall not have been reimbursed by the Borrower, provided that no Lender shall be liable to the Administrative Agent or any such other indemnified person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished ~~hereunder~~ hereunder. Each Lender further acknowledges that (i) the Syndication Agent and the Documentation Agents have no duties or ~~thereunder. Notwithstanding anything herein~~ obligations as such under this Agreement and (ii) with respect to ~~the contrary the Arrangers~~its Loans made or renewed by it, the ~~Co-~~Syndication ~~Agents~~ Agent and each Documentation Agent shall have the same rights and powers under this Agreement as any Lender and may exercise the same as though it were not an Agent, and the ~~Co-~~terms “Lender” and “Lenders” shall include the Syndication Agent and each Documentation ~~Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except~~ Agent in its individual capacity~~, if any, as a Lender~~.

Appears in 2 contracts

Sources: Credit Agreement (Raytheon Co/), 364 Day Competitive Advance and Revolving Credit Facility (Raytheon Co/)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Parent or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Parent or any of ~~its~~ the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Parent, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrower~~a Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, ~~or an Affiliate~~ New York, and having a combined capital and surplus of ~~any such bank~~at least $500,000,000. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, the Guarantee Agreement, the Security Documents, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ The parties hereto acknowledge that the ~~contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall~~ Arrangers (in their capacity as such) do not have any duties or ~~liabilities~~ responsibilities under ~~this~~ any of the Loan Documents and will not be subject to liability thereunder to any of the Loan Parties for any reason. No Secured Party shall have any right individually to realize upon any of the Collateral, it being understood and agreed that all powers, rights and remedies under the Security Documents may be exercised solely by the Collateral Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Revolving Loan Document Obligations (as defined in the Collateral Agreement) as a credit on account of the purchase price for any Collateral payable by the Administrative Agent on behalf of the Lenders at such sale or other disposition. The Lenders hereby authorize the Administrative Agent and Collateral Agent to enter into (i) any Second Lien Intercreditor Agreement, ~~except~~ (ii) the First Lien Intercreditor Agreement and (iii) an acknowledgement and consent to the GM Access and Security Agreement, and, in each case, acknowledge that they will be bound thereby. The Collateral Agent shall be entitled to the benefits of this Article on the same basis as if named herein as the Administrative Agent, and also shall be entitled to the exculpatory provisions and rights set forth in the Collateral Agreement and other Security Documents. The rights of the Collateral Agent under the Loan Documents may not be amended or modified in a manner adverse to the Collateral Agent without its ~~capacity, if any, as a Lender~~prior written consent.

Appears in 2 contracts

Sources: Revolving Credit Agreement (American Axle & Manufacturing Holdings Inc), Revolving Credit Agreement (American Axle & Manufacturing Holdings Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent (or Issuing Bank) hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent~~Agent (or Issuing Bank) hereunder, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent (or Issuing Bank) hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to the contrary the Arrangers,~~ None of the Co-Syndication ~~Agents and the~~ Agents, Co-Documentation ~~Agents named~~ Agents, Managing Agents, Sole Bookrunner or Sole Lead Arranger identified on the cover page of this Agreement shall ~~not~~ have any ~~duties~~ right, power, obligation, liability, responsibility or ~~liabilities~~ duty under this ~~Agreement~~Agreement in any such capacity. Without limiting the foregoing, ~~except~~ none of the Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Person so identified (whether or not any such Person is also a Lender hereunder) in ~~its capacity, if any, as a Lender~~deciding to enter into this Agreement or in taking or not taking action hereunder.

Appears in 2 contracts

Sources: Credit Agreement (Ultra Petroleum Corp), Credit Agreement (Ultra Petroleum Corp)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Holders hereby irrevocably appoints ~~the~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Finance LLC (or any successor appointed pursuant hereto) as Administrative Agent ~~as its agent~~ and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Notes Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Notes Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Administrative Agent shall act as security trustee in relation to the security created or evidenced by the English Security Documents, the Jersey Security Documents (if any) and the Irish Security Documents. Each Holder hereby authorizes the Administrative Agent to enter into each Security Trust Deed on its behalf. Each Person that becomes a Holder hereunder after the Closing Date hereby confirms that it shall be bound by the terms of the Security Trust Deeds on and from the date on which it becomes an Additional Purchaser as if it were an original Holder party thereto. In addition, each reference to the Administrative Agent in this Article 8 (including in connection with any indemnification or exculpation provided herein for the benefit of the Administrative Agent) shall be deemed to apply to the Administrative Agent acting in its capacity as security trustee under the Security Trust Deeds. Any Person serving as ~~the~~ Administrative Agent hereunder shall have the same rights and powers in its capacity as a ~~Lender~~ Holder as any other ~~Lender~~ Holder and may exercise the same as though it were not the Administrative Agent, and the term “Holder” or “Holders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such ~~bank~~ Person is in fact not a Holder, include each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~the Borrower~~ any Note Party or any ~~Subsidiary~~ subsidiary of any Note Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Holders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Note Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Note Party or such Affiliate) and acknowledge that the Administrative Agent shall not, except as expressly provided herein, be under any obligation to provide such information to them. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Notes Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default ~~has occurred~~ or Event of Default exists, and the use of the term “agent” herein and in the other Notes Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law; it being understood that such term is used merely as a matter of market custom, and is ~~continuing~~intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary ~~powers~~power, except discretionary rights and powers that are expressly contemplated ~~hereby that~~ by the Notes Documents and which the Administrative Agent is required to exercise in writing as directed by the Required ~~Lenders~~ Holders or Required Variable Note Holders (or such other number or percentage of the ~~Lenders~~ Holders as shall be necessary under the relevant circumstances as provided in Section ~~12.1~~9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Notes Document or applicable laws, and (c) except as expressly set forth ~~herein~~in the Notes Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the ~~Borrower~~ Issuer or any of ~~its~~ their Restricted Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Holders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required ~~Lenders~~ Holders or Required Variable Note Holders (or such other number or percentage of the ~~Lenders~~ Holders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct~~ misconduct, as determined by the final, unappealable judgment of a court of competent ~~jurisdiction by a final and non-appealable judgment~~jurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Issuer or ~~a Lender~~any Holder, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Notes Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Notes Document, (iii) the performance or observance of any ~~of the covenants~~covenant, ~~agreements~~ agreement or other ~~terms~~ term or ~~conditions~~ condition set forth ~~herein~~in any Notes Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Notes Document or any other agreement, instrument or document, or (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article 6 4 or elsewhere ~~herein~~in any Notes Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Note Party or any Affiliate thereof. If any Holder acquires knowledge of a Default or Event of Default, it shall promptly notify the Administrative Agent and the other Holders thereof in writing. Each Holder agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other Notes Document, accelerate the Obligations under any Notes Document, or exercise any right that it might otherwise have under applicable law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy Code or other similar Dispositions of Collateral. ~~The~~ Notwithstanding the foregoing, however, a Holder may take action to preserve or enforce its rights against a Note Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by such ▇▇▇▇▇▇, including the filing of a proof of claim in a case under the Bankruptcy Code. Notwithstanding anything to the contrary contained herein or in any of the other Notes Documents, each Issuer, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Note Guaranty; it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by, the Administrative Agent, on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the other Notes Documents may be exercised solely by, the Administrative Agent, and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code or any other applicable law), (A) the Administrative Agent, as agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Holder may be the purchaser or licensor of any or all of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Note Party under this Agreement. Each of the Holders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or by entering into documentation in connection with, or otherwise providing, any Banking Services Obligation, each of the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on behalf of all Secured Parties to take any of the following actions upon the instruction of the Required Holders: (a) consent to the Disposition of all or any portion of the Collateral free and clear of the Liens securing the Secured Obligations in connection with any Disposition pursuant to the applicable provisions of the Bankruptcy Code, including Section 363 thereof; (b) credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to the applicable provisions of the Bankruptcy Code, including under Section 363 thereof; (c) credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to the applicable provisions of the UCC, including pursuant to Sections 9-610 or 9-620 of the UCC; (d) credit bid all or any portion of the Secured Obligations, or purchase all or any portion of the Collateral (in each case, either directly or through one or more acquisition vehicles), in connection with any foreclosure or other Disposition conducted in accordance with applicable law following the occurrence of an Event of Default, including by power of sale, judicial action or otherwise; and/or (e) estimate the amount of any contingent or unliquidated Secured Obligations of such Holder or other Secured Party; provided that, in the case of a Secured Hedging Obligation, the Administrative Agent shall be entitled to rely ~~upon~~upon (without any further investigation) the termination or mark-to-market value, if any, provided to the Administrative Agent by the relevant counterparty; it being understood that no Holder shall be required to fund any amount in connection with any purchase of all or any portion of the Collateral by the Administrative Agent pursuant to the foregoing clause (b), (c) or (d) without its prior written consent. Each Secured Party agrees that the Administrative Agent is under no obligation to credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral; provided that, in connection with any credit bid or purchase described under clause (b), (c) or (d) of the preceding paragraph, the Secured Obligations owed to all of the Secured Parties (other than with respect to contingent or unliquidated liabilities as set forth in the next succeeding paragraph) may be, and shall ~~not incur any liability for relying upon~~be, ~~any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent~~ credit bid by the ~~proper Person. The~~ Administrative Agent ~~also may rely upon~~ on a ratable basis. With respect to each contingent or unliquidated claim that is a Secured Obligation, the Administrative Agent is hereby authorized, but is not required, to estimate the amount thereof for purposes of any ~~statement made~~ credit bid or purchase described in the second preceding paragraph so long as the estimation of the amount or liquidation of such claim would not unduly delay the ability of the Administrative Agent to ~~it orally~~ credit bid the Secured Obligations or ~~by telephone~~ purchase the Collateral in the relevant Disposition. In the event that the Administrative Agent, in its sole and ~~believed by it~~ absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot be ~~made by~~ estimated without unduly delaying the ~~proper Person~~ability of the Administrative Agent to consummate any credit bid or purchase in accordance with the second preceding paragraph, ~~and~~ then any contingent or unliquidated claims not so estimated shall be disregarded, shall not ~~incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may~~ be ~~counsel for the Borrower), independent accountants and other experts selected by it~~credit bid, and shall not be ~~liable for~~ entitled to any ~~action taken~~ interest in the portion or ~~not taken~~ the entirety of the Collateral purchased by it means of such credit bid. Each Secured Party whose Secured Obligations are credit bid under clause (b), (c) or (d) of the third preceding paragraph shall be entitled to receive interests in the Collateral or any other asset acquired in connection with such credit bid (or in the Capital Stock of the acquisition vehicle or vehicles that are used to consummate such acquisition) on a ratable basis in accordance with the ~~advice~~ percentage obtained by dividing (x) the amount of the Secured Obligations of such Secured Party that were credit bid in such credit bid or other Disposition, by (y) the aggregate amount of all Secured Obligations that were credit bid in such credit bid or other Disposition. In addition, in case of the pendency of any ~~such counsel~~proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Note Party, ~~accountants or experts. The~~ each Secured Party agrees that the Administrative Agent ~~may perform~~ (irrespective of whether the principal of any Note is then due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Issuer) shall be entitled and empowered, by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Notes and all ~~its duties~~ other Secured Obligations that are owing and ~~exercise its rights~~ unpaid and ~~powers by~~ to file such other documents as may be necessary or ~~through any one or more sub-agents appointed by~~ advisable in order to have the claims of the Holders and the Administrative ~~Agent. The~~ Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Holders and the Administrative Agent and their respective agents and counsel and all other amounts to the extent due to the Holders and the Administrative Agent under Sections 2.12 and 9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such ~~sub-agent~~ claims and to distribute the same, and if the Administrative Agent collects or receives any money or other property payable or deliverable on other claims of Secured Parties, to distribute the same to such Secured Parties as their interests may ~~perform any and all its duties and exercise its rights and powers through their respective Related Parties~~appear hereunder. ~~The exculpatory provisions of the preceding paragraphs shall apply to~~ Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such ~~sub-agent and~~ judicial proceeding is hereby authorized by each Holder to make such payments to the ~~Related Parties~~ Administrative Agent and, in the event that the Administrative Agent consents to the making of such payments directly to the Holders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and ~~any such sub-agent~~its agents and counsel, and ~~shall apply~~ any other amount due to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent ~~may resign at any time by notifying the Lenders, the Swingline Lender, each Letter of Credit Issuer~~ under Sections 2.12 and ~~the Borrower~~9.03. ~~Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower~~ Nothing contained herein shall be ~~required if an Event of Default has occurred and is continuing),~~ deemed to ~~appoint a successor. If no successor shall have been so appointed by~~ authorize the ~~Required Lenders and shall have accepted such appointment within 30 days after the retiring~~ Administrative Agent ~~gives notice of its resignation, then the retiring Administrative Agent may,~~ to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the ~~Lenders,~~ Secured Obligations or the ~~Swingline Lender and each Letter~~ rights of ~~Credit Issuer, appoint a successor~~ any Holder or to authorize the Administrative Agent ~~which shall be a bank with an office~~ to vote in respect of the ~~United States, or an Affiliate~~ claim of any Holder in any such ~~bank~~proceeding. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring The Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.b

Appears in 2 contracts

Sources: Note Purchase Agreement (Indivior Pharmaceuticals, Inc.), Note Purchase Agreement (Indivior Pharmaceuticals, Inc.)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any ~~Subsidiary~~ of its Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate of the Administrative Agent, as a Lender, has any Revolving Exposure or unused Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 2 contracts

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

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. ~~The bank~~ Any Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any ~~of its Subsidiaries~~ Subsidiary that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ under any Loan Document or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral or (vvi) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor, which successor Administrative Agent shall be subject to written approval by the Borrower at all times other than during the continuance of an Event of Default (which approval shall not be unreasonably withheld, delayed or conditioned). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon ~~this Agreement~~the Loan Documents, any related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the ~~contrary the Arrangers~~extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. In its capacity as Administrative Agent, the ~~Co-Syndication Agents~~ Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the UCC. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the ~~Co-Documentation Agents named~~ Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the ~~cover page~~ Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of ~~this Agreement~~ the Administrative Agent on behalf of the Secured Parties. The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral in accordance with Section 9.02(d) or pursuant to and in accordance with Section 9.18. Upon any sale or transfer of assets constituting Collateral that is permitted pursuant to the terms of any Loan Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, that (a) the Administrative Agent shall not ~~have~~ be required to execute any ~~duties~~ such document on terms which, in the Administrative Agent’s reasonable opinion, would expose the Administrative Agent to liability or ~~liabilities under this Agreement~~create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, ~~except~~ and (b) such release shall not in ~~its capacity~~any manner discharge, ~~if any~~affect or impair the Secured Obligations or any Liens upon (or obligations of the Borrower or any Subsidiary in respect of) all interests retained by the Borrower or any Subsidiary, ~~as a Lender~~including the proceeds of the sale, all of which shall continue to constitute part of the Collateral.

Appears in 2 contracts

Sources: Credit Agreement (Marketaxess Holdings Inc), Credit Agreement (Marketaxess Holdings Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any ~~discretionary~~ discre tionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of ~~its~~ the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (ia) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (iib) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (~~iii~~c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan ▇▇▇▇- ▇▇▇▇, (iv▇) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or ~~document,~~ document or (ve) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right,~~ right to appoint a successor with the consent of the Borrower (~~not to be unreasonably withheld; provided that~~ so long as no ~~such consent of the Borrower shall be required if an~~ Event of Default has occurred and is continuing), such consent not to ~~appoint a successor~~be unreasonably withheld. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Credit Agreement (Endo Pharmaceuticals Holdings Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan 104 Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the 105 covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not~~ Borrower, to ~~be unreasonably withheld~~appoint a successor; provided that no such ~~consent of~~ consultation with the Borrower shall be required if ~~an Event of~~ a Default has occurred and is continuing~~), to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~under the Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Credit Agreement (Cumulus Media Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of ~~its~~ the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (ia) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (iib) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (~~iii~~c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (ivd) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any 105 Loan Document or any other agreement, instrument or ~~document,~~ document or (ve) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, 106 its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Credit Agreement (Donjoy LLC)

The Administrative Agent. (a) Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. . (b) The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Parent Entity, any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder~~. The~~ . (c) To the extent required by any applicable laws, the Administrative Agent ~~shall not have~~ may withhold from any ~~duties or obligations except those expressly set forth herein~~payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the ~~generality~~ provisions of Section 2.16, each Lender shall indemnify and hold harmless the Administrative Agent against, within 10 days after written demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent as a result of the ~~foregoing~~failure of the Administrative Agent to properly withhold any Tax from amounts paid to or for the account of such Lender for any reason (including, ~~(a)~~ without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of, withholding Tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall ~~not~~ be ~~subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b)~~ conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent ~~shall not have~~ to set off and apply any ~~duty~~ and all amounts at any time owing to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such ~~other number or percentage of the Lenders as shall be necessary~~ Lender under the circumstances as provided in Section 12.1), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other ~~agreement, instrument or document, or~~ Loan Document against any amount due the Administrative Agent under this clause (vc). The agreements in this clause (c) shall survive the ~~satisfaction~~ resignation and/or replacement of ~~any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to~~ the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations. The ~~Administrative Agent shall be entitled to rely upon~~term “Lender” shall, ~~and shall not incur any liability~~ for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel purposes of this clause (~~who may be counsel for the Borrower~~c), ~~independent accountants and other experts selected by it, and shall not be liable for~~ include any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent Issuing Bank and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Swingline Lender, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Restatement Agreement (Aptiv PLC)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful misconduct as determined by a final nonappealable judgment of a court of competent ~~jurisdiction by a final and non-appealable judgment~~jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or ~~document,~~ document or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Swingline Lender, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~right to appoint a successor, ~~with the consent of~~ which successor shall be consented to by the Borrower at all times other than during the occurrence and continuance of an Event of Default (~~not to be unreasonably withheld; provided that no such~~ which consent of the Borrower shall not be ~~required if an Event of Default has occurred and is continuing~~unreasonably withheld or delayed)~~, to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such ~~appointment~~ appointment, and/or the consent of the Borrower (if required pursuant to the immediately preceding sentence) has not been granted, within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, with the ~~Swingline Lender~~ consent of the Borrower at all times other than during the occurrence and ~~each Letter~~ continuance of ~~Credit Issuer~~an Event of Default (which consent of the Borrower shall not be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and ~~letters of credit and~~ not ~~instruments~~ investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the ~~contrary~~ extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. The Lenders are not partners or co-venturers, and no Lender shall be liable for the ~~Arrangers~~acts or omissions of, or (except as otherwise set forth herein in case of the ~~Co-Syndication Agents~~ Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the ~~Co-Documentation Agents named on~~ date such principal or interest has become due and payable pursuant to the ~~cover page~~ terms of this ~~Agreement shall not have any duties or liabilities under this~~ Agreement~~, except in its capacity, if any, as a Lender~~.

Appears in 1 contract

Sources: Loan Agreement (Perkinelmer Inc)

Appears in 1 contract

Sources: Credit Agreement (Advance Auto Parts Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless 126 119 and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower or the Mexico Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by 127 notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be he discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ The provisions of this Article shall apply to the ~~contrary~~ Collateral Agent as though named herein as the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a LenderAdministrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Huntsman Packaging Corp)

Appears in 1 contract

Sources: Credit Agreement (Fleming Companies Inc /Ok/)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Borrower, the other Loan Parties or any ~~Subsidiary~~ of their subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower ~~or any of its Subsidiaries~~ Group Entities that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the written consent of the Borrower (not to be unreasonably withheld~~; provided that~~ , conditioned or delayed) so long as no ~~such consent of the Borrower shall be required if an~~ Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and, to the extent required, consented to by the Borrower, and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, extent to which it will continue as a ~~Lender~~lender or assign or otherwise transfer its rights, interests and obligations hereunder.

Appears in 1 contract

Sources: Credit Agreement (American Realty Capital Global Trust, Inc.)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender~~ Lenders and each Letter of Credit Issuer hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any the terms of this Agreement or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Bankruptcy Code or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Bankruptcy Code; and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, ~~the Swingline Lender,~~ each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders, the Swingline Lender~~ Lenders and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) then such removal shall nonetheless become effective in accordance with such notice. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 12.5(a) shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the ~~Arrangers~~Joint Book runners, the ~~Co-Syndication Agents~~ Joint Lead Arrangers and the ~~Co-Documentation Agents~~ Syndication Agent named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Revolving Credit Agreement (ITC Holdings Corp.)

The Administrative Agent. Each of the ~~Lenders~~Lenders and the Issuing Bank hereby [***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, ~~the Swingline Lender and each Letter of Credit Issuer hereby~~ MARKED BY BRACKETS AND ASTERISKS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED INFORMATION. irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrower or~~ any ~~Subsidiary~~ Loan Party, any of their Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Borrower~~ any Loan Party or any of ~~its~~ their Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this ~~Agreement~~Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, any other Loan Document, or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent, including, without limitation with such titles as “Bookrunner,” “Arranger” and “Syndication Agent”. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their [***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS AND ASTERISKS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED INFORMATION. respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Notwithstanding anything herein to the contrary, none of the “Bookrunners,” “Arrangers” or “Syndication Agent” listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the Issuing Bank hereunder.” Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld~~; provided that~~ ) so long as no ~~such consent of the Borrower shall be required if an~~ Event of Default ~~has occurred and is continuing)~~exists, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, extent to which it will continue as a ~~Lender~~Lender or assign or otherwise transfer its rights, interests and obligations hereunder.

Appears in 1 contract

Sources: Credit Agreement (Dexcom Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with ~~the consent of~~ the Borrower (~~not to be unreasonably withheld; provided~~ except that no ~~such consent of the Borrower shall be~~ consultation is required if during an Event of ~~Default has occurred and is continuing~~Default), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ The provisions of this Article applicable to the ~~contrary~~ Administrative Agent also shall apply to the ~~Arrangers~~Collateral Agent, mutatis mutandis. The parties hereto acknowledge and agree that none of the ~~Co-~~Syndication Agents ~~and the Co-~~or Documentation Agents ~~named on the cover page of this Agreement shall not have~~ has any ~~duties~~ right, duty or ~~liabilities~~ liability under ~~this Agreement, except~~ any Loan Document in its ~~capacity, if any~~capacity as Syndication Agent or Documentation Agent, as ~~a Lender~~applicable.

Appears in 1 contract

Sources: Credit Agreement (Advance Auto Parts Inc)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any ~~Subsidiary~~ of its Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate of the Administrative Agent, as a Lender, has any Revolving Exposure or unused Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-agents~~ sub‑agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and ~~information~~ information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Credit Agreement (Lubys Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any ~~Subsidiary~~ of its Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate of the Administrative Agent, as a Lender, has any Revolving Exposure or unused Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Credit Agreement (Orion Marine Group Inc)

Appears in 1 contract

Sources: Credit Agreement (On Semiconductor Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. Any co-agents hereunder shall have no obligations or liabilities pursuant to their capacity as co- agents. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Credit Agreement (Hanger Orthopedic Group Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints ~~the~~ Truist Bank, as successor by merger to SunTrust Bank, to serve as Administrative Agent ~~as its agent~~ and Collateral Agent under the Loan Documents, and authorizes the Administrative Agent and Collateral Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in ~~Section 12.1~~the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the ~~Borrower~~ Borrower, any other Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the ~~Borrower~~ Borrower, a Lender or ~~a Lender,~~ an Issuing Bank and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vvi) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. Neither the Administrative Agent nor any of its Affiliates and its and their respective partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives shall be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (i)‎ be obligated to ascertain, monitor or inquire as to whether any Lender or prospective Lender is a Disqualified Lender‎ or (ii) have any liability with respect to or arising out of any assignment of Loans, or disclosure of confidential information, to any Disqualified‎ Lender. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person~~, and shall not incur any liability for relying thereon~~). The Administrative Agent may consult with legal counsel (who may be counsel for or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all ~~its~~ of their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign ~~at any time by notifying~~ upon 30 days’ notice to the Lenders, the ~~Swingline Lender~~Issuing Banks and Holdings. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, ~~each Letter~~ the Administrative Agent may be removed as the Administrative Agent hereunder at the request of ~~Credit Issuer~~ Holdings and the ~~Borrower~~Required Lenders. Upon receipt of any such ~~resignation~~notice of resignation or upon such removal, the Required Lenders shall have the right, with ~~the~~ Holdings’ consent ~~of the Borrower~~ (~~not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if~~ unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may,~~ may (but shall not be obligated to) on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be ~~a bank~~ an Approved Bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such ~~bank~~Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and Holdings may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of Holdings, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of ~~its~~ a successor’s appointment as Administrative Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative ~~Agent~~Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation ~~hereunder~~or removal hereunder and under the other Loan Documents, the provisions of this Article and Section ~~12.5~~ 9.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it the retiring or removed Administrative Agent was acting as Administrative Agent. Each Lender and each Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Joint Bookrunners or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Joint Bookrunners or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment or Refinancing Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Lender shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Lenders in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Lenders at such sale or other disposition. Each Lender, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations, to have agreed to the foregoing provisions. Notwithstanding anything herein to the ~~contrary the Arrangers~~contrary, ~~the Co-Syndication Agents and the Co-Documentation Agents~~ neither a Joint Bookrunner nor any Person named on the cover page of this Agreement as a Joint Lead Arranger shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender.~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder, including under Section 9.03, fully as if named as an indemnitee or indemnified person therein and irrespective of whether the indemnified losses, claims, damages, liabilities and/or related expenses arise out of, in connection with or as a result of matters arising prior to, on or after the effective date of any Loan Document. To the extent required by any applicable Requirements of Law (as determined in good faith by the Administrative Agent), the Administrative Agent may withhold from any payment to any Lender under any Loan Document an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.17, each Lender shall indemnify the Administrative Agent against, and shall make payable in respect thereof within 30 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the U.S. Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts paid to or for the account of such Lender for any reason (including because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective)

Appears in 1 contract

Sources: Incremental Assumption and Amendment (European Wax Center, Inc.)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. ~~The bank~~ Any Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Company or any ~~of its Subsidiaries~~ Subsidiary that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Swingline Lender, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.The

Appears in 1 contract

Sources: Credit Agreement (Altra Industrial Motion Corp.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline~~ Issuing Lender ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Lender serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.02), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any debtor relief law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any debtor relief law, and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal ~~counsel (who may be counsel for the Borrower)~~counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Lender and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower (not to be unreasonably withheld; provided that~~ Borrower, if no ~~such consent of the Borrower shall be required if an~~ Default or Event of Default has occurred and is ~~continuing~~continuing (such consent not to be unreasonably withheld), to appoint a ~~successor~~successor . If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Lender, appoint a successor Administrative Agent with the consent of the Borrower, if no Default or Event of Default has occurred and is continuing (such consent not to be unreasonably withheld), which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named~~ The Lenders identified on the ~~cover~~ facing page of this Agreement as Co-Lead Arrangers, Syndication Agents, Documentation Agents or any similar titles, if any, shall not have any ~~duties~~ right, power, obligation, liability, responsibility or ~~liabilities~~ duty under this ~~Agreement~~Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, ~~except~~ the Lenders so identified as Co- Lead Arrangers, Syndication Agents or Documentation Agents (or having any similar title) shall not have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on the Lender so identified in ~~its capacity, if any, as a Lender~~deciding to enter into this Agreement or in taking or not taking action hereunder.

Appears in 1 contract

Sources: Credit Agreement (Quanex Building Products CORP)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Company or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the ~~right,~~ right to appoint a successor with the written consent of the ~~Borrower (~~Company, which consent shall not to be unreasonably ~~withheld~~withheld or delayed; ~~provided~~ provided, that no such consent of the ~~Borrower~~ Company shall be required if an Event of Default ~~has~~ shall have occurred and ~~is continuing), to appoint a successor~~be continuing on the date of such appointment. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~the~~ any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the~~ such Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ None of the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacityLenders, if any, identified in this Agreement as a Syndication Agent or a Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agent, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.

Appears in 1 contract

Sources: Credit Agreement (Fuller H B Co)

Appears in 1 contract

Sources: Loan Agreement (Nv Energy, Inc.)

The Administrative Agent. (a) Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. . (b) The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own bad faith, gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or ~~experts.~~ experts in the absence of gross negligence or willful misconduct. (e) The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (f) Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower and (unless an Event of Default shall have occurred and be continuing) with the consent of the Borrower (~~not to be unreasonably withheld; provided that no such~~ which consent of the Borrower shall not be ~~required if an Event of Default has occurred and is continuing~~unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent from among the Lenders which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. . (g) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder~~. Notwithstanding anything herein~~ . (h) The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder or ceases to be required to be a Subsidiary Guarantor pursuant to the ~~contrary~~ terms hereof. Upon request by the ~~Arrangers~~Administrative Agent at any time, the ~~Co-Syndication Agents~~ Required Lenders will confirm in writing the Administrative Agent’s authority to release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty pursuant to this paragraph. In each case as specified herein, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the ~~Co-Documentation Agents named on~~ applicable Loan Party such documents as such Loan Party may reasonably request to release such Subsidiary Guarantor from its obligations under the ~~cover page~~ Subsidiary Guaranty in accordance with the terms of the Loan Documents and this ~~Agreement shall not have any duties or liabilities under this Agreement, except in its capacity~~paragraph. (i) None of the Lenders, if any, identified in this Agreement as a Syndication Agent or Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph.

Appears in 1 contract

Sources: Credit Agreement (Mylan Laboratories Inc)

Appears in 1 contract

Sources: Effectiveness Agreement (Alliant Techsystems Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement to serve as ~~its~~ administrative agent and collateral agent under the Loan Documents, and authorizes the Administrative Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender's or Issuing Bank's behalf. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in ~~Section 12.1~~the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Company, any Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Company, a Lender or ~~a Lender~~an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The Administrative Agent also ~~may rely~~ shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and ~~shall not incur~~ may act upon any ~~liability for relying thereon~~such statement prior to receipt of written confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the ~~appointment and acceptance~~ terms of ~~a successor Administrative Agent as provided in~~ this paragraph, the Administrative Agent may resign at any time ~~by notifying~~ from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the ~~Borrower~~Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~intent to resign, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by the ~~Borrower~~ Company and such successor. ~~After~~ Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Company, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent’s , shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent's resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~12.5~~ 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative ~~Agent~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loan Documents Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. Notwithstanding anything herein to the ~~contrary the Arrangers~~contrary, ~~the Co-Syndication Agents and the Co-Documentation Agents~~ neither any Arranger nor any Person named on the cover page of this Agreement as a Bookrunner, a Syndication Agent or a Co-Documentation Agent shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and neither the Company nor any other Loan Party shall have any rights as a third party beneficiary of any such provisions.

Appears in 1 contract

Sources: Credit Agreement (Vishay Intertechnology Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline~~ Issuing Lender ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ Lender serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or ~~any Subsidiary or~~ other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the ~~bank serving as~~ Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~10.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Lender and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the ~~consent~~ approval of ~~the Borrower (~~Borrower, which shall not to be unreasonably withheld~~; provided that no such consent of the Borrower~~ , conditioned or delayed, and shall not be required if during the existence of an Event of ~~Default has occurred and is continuing)~~Default, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Lender, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ The Lenders, jointly and severally, shall indemnity the Administrative Agent and each of its Related Parties (each such Person being called an “Agent Indemnitee”) against, and hold each Agent Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Agent Indemnitee, incurred by or asserted against any Agent Indemnitee arising out of, in connection with, or as a result of any indemnity given by the Administrative Agent in favor of any individual Lender or any other third party in connection with any account control agreement or other similar document related to or in connection with (i) this Agreement or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the Transactions or any other transactions contemplated hereby or (ii) any actual claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Agent Indemnitee is a party thereto; and whether or nor caused by the ordinary, sole or contributory negligence of any Agent Indemnitee; provided, further that such indemnity granted by the Lenders pursuant to this Article VIII shall not, as to any Agent Indemnitee, be available to the ~~contrary~~ extent that such losses, claims, damages, liabilities or related expenses resulted from the ~~Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page~~ gross negligence or willful misconduct of ~~this Agreement shall not have any duties~~ such Agent Indemnitee or ~~liabilities under this Agreement, except in its capacity, if any, as a Lender~~such Agent Indemnitee’s Related Parties.

Appears in 1 contract

Sources: Credit Agreement (Fei Co)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline~~ Issuing Lender ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Not in limitation of the foregoing, each Lender authorizes and directs the Administrative Agent to enter into the Loan Documents for the benefit of the Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by the Required Lenders in accordance with the provisions of this Agreement or the Loan Documents, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. Each Lender of a Facility hereby agrees that, except as otherwise set forth herein, any action taken by the Majority Facility Lenders under such Facility in accordance with the provisions of this Agreement or the Loan Documents, and the exercise by the Majority Facility Lenders under such Facility of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders under such Facility. Nothing herein shall be construed to deem the Administrative Agent a trustee or fiduciary for any Lender or to impose on the Administrative Agent duties or obligations other than those expressly provided for herein. Without limiting the generality of the foregoing, the use of the terms “Administrative Agent”, “administrative agent”, “agent” and similar terms in the Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, use of such terms is merely a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The ~~bank~~ Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the~~ Borrower or any Subsidiary or other Affiliate thereof as if it were ~~not~~ any other bank and without any duty to account therefor to the other Lenders. Further, the Administrative Agent ~~hereunder~~and any affiliate may accept fees and other consideration from Borrower for services in connection with this Agreement and otherwise without having to account for the same to the other Lenders. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its affiliates may receive information regarding Borrower Parties or any Affiliate thereof (including information that may be subject to confidentiality obligations in favor of such Person) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1)~~9.02) and such instructions by the Required Lenders shall be binding upon all Lenders and all holders of any of the Obligations; provided, however, that, notwithstanding anything in this Agreement to the contrary, the Administrative Agent shall not be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth ~~herein~~herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable to any Lender for the failure to disclose, any information relating to ~~the~~ Borrower or any of ~~its~~ their Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. Not in limitation of the foregoing, the Administrative Agent may exercise any right or remedy it or the Lenders may have under any Loan Document upon the occurrence and during the continuance of a Default or an Event of Default unless the Required Lenders have directed the Administrative Agent otherwise. The Administrative Agent shall not be liable to any Lender for any action taken or not taken by it with the consent or at the request of the Required Lenders or all of the Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1)~~ 9.02), as applicable, or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~the~~ a Borrower Party or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this ~~Agreement~~Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~herewith~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. ~~The~~ Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither the Administrative Agent nor any of its directors, officers, agents, employees or counsel shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it under or in connection with this Agreement or any other Loan Document, except for its or their own gross negligence or willful misconduct in connection with its duties expressly set forth herein or therein. Without limiting the generality of the foregoing, the Administrative Agent: may consult with legal counsel (including its own counsel or counsel for Borrower Parties or any other Person), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of ~~any~~ such counsel, accountants or experts. Neither the Administrative Agent nor any of its directors, officers, agents, employees or counsel: (a) makes any warranty or representation to any Lender or any other Person and shall be responsible to any Lender or any other Person for any statement, warranty or representation made or deemed made by a Borrower Party, any Affiliate or any other Person in or in connection with this Agreement or any other Loan Document; (b) shall have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other Loan Document or the satisfaction of any conditions precedent under this Agreement or any Loan Document on the part of any Borrower Party or other Persons or inspect the property, books or records of any Borrower Party or any other Person; (c) shall be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document, any other instrument or document furnished pursuant thereto; (d) shall have any liability in respect of any recitals, statements, certifications, representations or warranties contained in any of the Loan Documents or any other document, instrument, agreement, certificate or statement delivered in connection therewith or (e) shall incur any liability under or in respect of this Agreement or any other Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telephone, telecopy or electronic mail) reasonably believed by it to be genuine and signed, sent or given by the proper party or parties. The Administrative Agent may reasonably execute any of its duties under the Loan Documents by or through agents, employees or attorneys-in-fact and shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more ~~sub-agents~~ subagents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-agent~~ subagent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~sub-agent~~ subagent and to the Related Parties of the Administrative Agent and any such ~~sub-agent~~subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Lender and the ~~Borrower~~Borrower Parties in writing. Upon any such resignation, the Required Lenders shall have the right, in consultation with, and, unless an Event of Default shall have occurred and be continuing, with the consent of the Borrower Parties (such consent not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~, conditioned or delayed), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Lender, appoint a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent,~~ Agent and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder (except for any liability to any Borrower Party first arising prior to such acceptance). The fees payable by ~~the~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the~~ Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-agents~~ subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender expressly acknowledges and agrees that neither the Administrative Agent nor any of its officers, directors, employees, agents, counsel, attorneys‑in‑fact or other affiliates has made any representations or warranties to such Lender and that no act by the Administrative Agent hereafter taken, including any review of the affairs of Borrower Parties or any Subsidiary or Affiliate thereof, shall be deemed to constitute any such representation or warranty by the Administrative Agent to any Lender. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative ~~Agent or~~ Agent, any other Lender or counsel to the Administrative Agent, or any of their respective officers, directors, employees, agents or counsel, and based on the financial statements of any Borrower Party or any Subsidiary or Affiliate thereof, and inquiries of such Persons, its independent due diligence of the business and affairs of the Borrower Parties or any Subsidiary or Affiliate thereof and any other Persons, its review of the Loan Documents, the legal opinions required to be delivered to it hereunder, the advice of its own counsel and such other documents and information as it has deemed appropriate, made its own credit and legal analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire, or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent, any other Lender or counsel to the Administrative Agent or any ~~other Lender~~ of their respective officers, directors, employees and agents, and based on such review, advice, documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning any Borrower Party and its Affiliates) as it shall ~~from time to time~~ deem ~~appropriate~~appropriate at the time, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or ~~thereunder~~thereunder and in deciding whether or the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. ~~Notwithstanding anything herein~~ The Administrative Agent shall not be required to keep itself informed as to the ~~contrary~~ performance or observance by Borrower or any other Person of the ~~Arrangers~~Loan Documents or any other document referred to or provided for therein or to inspect the properties or books of, or make any other investigation of, Borrower Parties or any Subsidiary or Affiliate thereof. Except for notices, reports and other documents and information expressly required to be furnished to the Lenders by the Administrative Agent under this Agreement or any of the other Loan Documents, the ~~Co-Syndication Agents~~ Administrative Agent shall have no duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness of Borrower Parties or any Subsidiary or Affiliate thereof which may come into possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys‑in‑fact or other Affiliates. Each Lender acknowledges that the Administrative Agent’s legal counsel in connection with the transactions contemplated by this Agreement is only acting as counsel to the Administrative Agent and is not acting as counsel to such Lender. Regardless of whether the transactions contemplated by this Agreement and the ~~Co-Documentation Agents named on~~ other Loan Documents are consummated, each Lender agrees to indemnify the ~~cover page~~ Administrative Agent (to the extent not reimbursed by Borrower Parties and without limiting the obligation of ~~this Agreement shall not have~~ Borrower Parties to do so) pro rata in accordance with such Lender’s respective Applicable Percentage, from and against any ~~duties~~ and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or ~~liabilities under this Agreement~~disbursements of any kind or nature whatsoever which may at any time be imposed on, ~~except~~ incurred by, or asserted against the Administrative Agent (in its ~~capacity, if any, as a Lender.~~capacity as

Appears in 1 contract

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

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints ~~the~~ SunTrust Bank to serve as Administrative Agent ~~as its agent~~ and Collateral Agent under the Loan Documents, and authorizes the Administrative Agent and Collateral Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The ~~bank~~ provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~powers~~power, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise as directed in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in ~~Section 12.1~~the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the ~~Borrower~~ Borrower, any other Subsidiary or any other Affiliate of ~~its Subsidiaries~~ any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the ~~Borrower~~ Borrower, a Lender or ~~a Lender,~~ an Issuing Bank and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vvi) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. Neither the Administrative Agent nor any of its Affiliates and its and their respective partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives shall be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (i) be obligated to ascertain, monitor or inquire as to whether any Lender or prospective Lender is a Disqualified Lender or (ii) have any liability with respect to or arising out of any assignment of Loans, or disclosure of confidential information, to any Disqualified Lender. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person~~, and shall not incur any liability for relying thereon~~). The Administrative Agent may consult with legal counsel (who may be counsel for or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all ~~its~~ of their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign ~~at any time by notifying~~ upon 30 days’ notice to the Lenders, the ~~Swingline Lender~~Issuing Banks and Holdings. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, ~~each Letter~~ the Administrative Agent may be removed as the Administrative Agent hereunder at the request of ~~Credit Issuer~~ Holdings and the ~~Borrower~~Required Lenders. Upon receipt of any such ~~resignation~~notice of resignation or upon such removal, the Required Lenders shall have the right, with ~~the~~ Holdings’ consent ~~of the Borrower~~ (~~not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if~~ unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may,~~ may (but shall not be obligated to) on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be ~~a bank~~ an Approved Bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such ~~bank~~Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and Holdings may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of Holdings, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of ~~its~~ a successor’s appointment as Administrative Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative ~~Agent~~Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation ~~hereunder~~or removal hereunder and under the other Loan Documents, the provisions of this Article and Section ~~12.5~~ 9.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it the retiring or removed Administrative Agent was acting as Administrative Agent. Each Lender and each Issuing Bank acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Joint Bookrunners or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Joint Bookrunners or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment or Refinancing Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Lender shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Lenders in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Lenders at such sale or other disposition. Each Lender, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations, to have agreed to the foregoing provisions. Notwithstanding anything herein to the ~~contrary the Arrangers~~contrary, ~~the Co-Syndication Agents and the Co-Documentation Agents~~ neither a Joint Bookrunner nor any Person named on the cover page of this Agreement as a Joint Lead Arranger shall ~~not~~ have any duties or ~~liabilities~~ obligations under this ~~Agreement,~~ Agreement or any other Loan Document (except in its capacity, ~~if any~~as applicable, as a ~~Lender.~~Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder, including under Section 9.03, fully as if named as an indemnitee or indemnified person therein and irrespective of whether the indemnified losses, claims, damages, liabilities and/or related expenses arise out of, in connection with or as a result of matters arising prior to, on or after the effective date of any Loan Document. To the extent required by any applicable Requirements of Law (as determined in good faith by the Administrative Agent), the Administrative Agent may withhold from any payment to any Lender under any Loan Document an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.17, each Lender shall indemnify the Administrative Agent against, and shall make payable in respect thereof within 30 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the U.S. Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts paid to or for the account of such Lender for any reason (including because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective). A certificate as to the amount of such pa

Appears in 1 contract

Sources: Incremental Assumption and Amendment (European Wax Center, Inc.)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Swingline Lender, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right~~right to appoint a successor (such successor to be approved by the Borrower, ~~with the consent of the Borrower (~~such approval not to be unreasonably ~~withheld~~withheld or delayed; ~~provided that~~ provided, however, if an Event of Default shall exist at such time, no ~~such consent~~ approval of the Borrower shall be required ~~if an Event of Default has occurred and is continuing~~hereunder)~~, to appoint a successor~~. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, ~~the Swingline Lender and each Letter of Credit Issuer,~~ appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and ~~letters of credit and~~ not ~~instruments~~ investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the ~~contrary~~ extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the ~~Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity~~Lenders, if any, identified in this Agreement as a Syndication Agent or Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. In addition to the foregoing, and notwithstanding anything contained in this Agreement, none of the Joint Bookrunners and Joint Lead Arrangers shall have any obligation, liability, responsibility or duty under this Agreement or any of the other Loan Documents. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.

Appears in 1 contract

Sources: Loan Agreement (Universal Corp /Va/)

The Administrative Agent. In order to expedite the various transactions contemplated by this Agreement, UBOC is hereby appointed to act as Administrative Agent and Collateral Agent. Each ~~of the Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Bank hereby irrevocably ~~appoints~~ authorizes and directs the Administrative Agent ~~as its agent~~ and ~~authorizes~~ the ~~Administrative Agent~~ Collateral Agent, respectively, to take such ~~actions~~ action on ~~its~~ behalf of such Bank under the terms and provisions of this Agreement and the Loan Documents and to exercise such powers hereunder and thereunder as are specifically delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and ~~any~~ the Collateral Agent, respectively, by the terms and provisions hereof and thereof, together with such ~~sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein~~ powers as ~~well as activities as Administrative Agent~~are reasonable incidental thereto. Subject to the appointment and acceptance of a successor Administrative Agent or Collateral Agent as provided in this paragraph, the Administrative Agent or the Collateral Agent may resign at any time by notifying the ~~Lenders, the Swingline Lender, each Letter of Credit Issuer~~ Banks and the ~~Borrower~~Borrowers. Upon any such resignation, the ~~Required Lenders~~ Majority Banks shall have the right, with the consent of the ~~Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if~~ Borrowers except during an Event ~~of Default has occurred and is continuing)~~at Default, to appoint a successor. If no successor shall have been so appointed by the ~~Required Lenders~~ Majority Banks and shall have accepted such appointment within 30 days after the retiring Administrative Agent or Collateral Agent gives notice of its resignation, then the retiring Administrative Agent or Collateral Agent may, on behalf of the ~~Lenders,~~ Banks and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which shall be a bank with an office in the United States,~~ or ~~an Affiliate of any such bank~~Collateral Agent. Upon the acceptance of its appointment as Administrative Agent or Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent or Collateral Agent, and the retiring Administrative Agent or Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent or Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After the Administrative Agent’s 's or Collateral Agent's resignation hereunder, the provisions of this ~~Article~~ Article, Section 11.4 and Section ~~12.5~~ 11.5 shall continue in effect for the benefit of such retiring Administrative Agent or Collateral Agent, ~~its sub-~~or any of the respective directors, Credit Agreement Final officers, employees or agents ~~and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent or Collateral Agent. The Administrative Agent is hereby expressly authorized on behalf of the Banks, without hereby limiting any implied authority, (a) to receive on behalf of each Bank any payment of principal of or interest on the Loans outstanding hereunder and all other amounts accrued hereunder paid to the Administrative Agent, and promptly to distribute to each Bank its proper share of all payments so received. (b) to give notice within a reasonable time on behalf of each of the Banks to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge, and (c) to distribute promptly to each Bank copies of all notices, agreements and other material as provided for in this Agreement as received by the Administrative Agent. The Collateral Agent is hereby expressly authorized on behalf of the Lender Parties, without hereby limiting any implied authority, (a) to execute, directly or through duly empowered attorneys in fact, any instrument or deed that may be required for the execution of Collateral for the benefit of the Lender Parties, (b) to receive and hold on behalf of the Lender Parties any instrument or certificate which constitutes Collateral, (c) to give notice within a reasonable time on behalf of each of the Banks to any Guarantor or any Borrower of any event of default specified in any Loan Document of which the Collateral Agent has actual knowledge, and (d) to take any and all action on behalf of the Banks permitted under the terms any Loan Document. The Collateral Agent may, in its discretion and without the consent of the Banks, appoint subagents to act as the Collateral Agent in any jurisdiction or with respect to any Collateral. For the sole purpose of taking a security interest in the Collateral in any country other than the United States (including, without limitation, France and The Netherlands), the Collateral Agent shall be the joint and several creditor of each of the Obligations owed by the Loan Parties to the other Lender Parties. The Collateral Agent shall have its own independent right to demand payment or performance of any Obligations owed by the Loan Parties, provided that the Collateral Agent shall receive the written consent of the Majority Banks prior to exercising such right. The Collateral Agent agrees to distribute any amounts paid to the Collateral Agent by any Loan Party in satisfaction of such Loan Party's Obligations to the other Lender Parties in accordance with this Agreement and the Loan Documents. The payment or performance of any Credit Agreement Final Obligations to the Collateral Agent shall discharge the corresponding Obligations to the other Lender Parties. Neither the Administrative Agent, the Collateral Agent, nor any of their respective directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them hereunder except for such Person's own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith or be required to ascertain or to make any inquiry concerning the performance or observance by Holdings or any other Loan Party of any of the terms, conditions, covenants or agreements of this Agreement or any other Loan Document. The Administrative Agent and the Collateral Agent shall not be responsible to the Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement, the Loan Documents or any other instrument or agreement to which reference is made herein, The Administrative Agent and the Collateral Agent may deem and treat the payee of any Loan as the owner thereof for all purposes hereof until it shall have received from the payee of such Loan notice, given as provided herein, of the transfer thereof. The Administrative Agent and the Collateral Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Majority Banks, and, except as otherwise specifically provided herein, such instructions and any action taken or failure to act pursuant thereto shall be binding on all the Banks. Each of the Administrative Agent and the Collateral Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any paper or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Person or Persons. None of the Lender Parties or any of their respective directors, officers, employees or agents shall have any responsibility to Holdings, any Borrower, or any other Person on account of the failure or delay in performance or breach by any other Bank of any of its obligations hereunder or to any other Bank on account of the failure of or delay in performance or breach by such other Bank, Holdings, or any Borrower, or any other Person of any of their respective obligations hereunder or in connection herewith. The Administrative Agent and the Collateral Agent may execute any and all their respective duties hereunder by or through agents or employees and shall be entitled to advice of legal counsel selected by the Administrative Agent with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. Any Person serving as the Administrative Agent or Collateral Agent hereunder shall have the same rights and powers in its capacity as a Bank as any other Bank and may exercise the same as though it were not the Administrative Agent or Collateral Agent. Each ~~Lender acknowledges~~ of the Administrative Agent, the Collateral Agent and ~~agrees that~~ their respective Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~extensions of credit made hereunder are commercial loans~~ Borrowers and ~~letters of credit and~~ their Affiliates as if it were not ~~instruments in a business enterprise~~ the Administrative Agent, the Collateral Agent or ~~securities~~such an Affiliate. Each ~~Lender further represents~~ Bank agrees (i) to reimburse each of the Administrative Agent and the Collateral Agent in the amount of such Bank's Pro Rata Share of any expenses incurred for the benefit of the Banks by such Administrative Agent or Collateral Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Banks, not reimbursed by the Loan Parties and -71- Credit Agreement Final (ii) to indemnify and hold harmless the Administrative Agent, the Collateral Agent and any of their respective directors, officers, employees or agents, on demand, in the amount of such Bank's Pro Rata Share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in such capacity or in any way relating to or arising out of this Agreement, any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent not reimbursed by the Loan Parties, provided, however, that no Bank shall be liable to the Administrative Agent or the Collateral Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent or the Collateral Agent, as the case may be, or of any of the directors, officers, employees or agents of such Person. Each Bank acknowledges that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon ~~the Administrative Agent or~~ any other Lender Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement and the other Loan Documents and to make Loans as contemplated hereby. Each ~~Lender~~ Bank also acknowledges that it will, independently and without reliance upon ~~the Administrative Agent or~~ any other Lender Party and based on such documents and information as it shall ~~from time to time~~ deem ~~appropriate~~appropriate at the time, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Credit Agreement (Alleghany Corp /De)

The Administrative Agent. (a) Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. . (b) The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ai) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bii) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (ciii) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default (other than a Default or Event of Default under clause (a) or (b) of Article VII in respect of any amount payable to the Administrative Agent) unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the Table of Contents covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (e) The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (f) Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. . (g) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Table of Contents Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Credit Agreement (Perot Systems Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more ~~sub-agents~~ subagents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-agent~~ subagent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~sub-agent~~ subagent and to the Related Parties of the Administrative Agent and any such ~~sub-agent~~subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the ~~consent~~ prior approval of the Borrower (which shall not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York and a minimum capital surplus of $100 million, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-agents~~ subagents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Credit Agreement (Gartner Inc)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), ~~and~~ (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any ~~capacity~~capacity and (d) the Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders; further, without limiting the generality of the foregoing clause (d), the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Lender. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the~~ The Administrative Agent may resign at any time by ~~notifying~~ giving written notice thereof to the ~~Lenders, the Swingline Lender, each Letter of Credit Issuer~~ Lenders and the Borrower~~. Upon any~~ , such ~~resignation, the Required Lenders shall have the right, with the consent of the Borrower (not~~ resignation to be ~~unreasonably withheld; provided that no such consent~~ effective upon the appointment of ~~the Borrower shall be required~~ a successor Administrative Agent, or, if ~~an Event of Default has occurred and is continuing), to appoint a successor. If~~ no successor ~~shall have~~ Administrative Agent has been ~~so appointed by the Required Lenders and shall have accepted such appointment within 30~~ appointed, 45 days after the retiring Administrative Agent gives notice of its ~~resignation, then~~ intention to resign. If the ~~retiring~~ Administrative Agent ~~may~~(i) has become the subject of a proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or (ii) has appointed for it, without the application, approval or consent of the Administrative Agent, a receiver, trustee, examiner, liquidator or similar official, or a proceeding described in clause (i) above shall be instituted against the Administrative Agent, the Administrative Agent may be removed by written notice received by the Administrative Agent from the Required Lenders or the Borrower, such removal to be effective on the date specified by the Required Lenders or the Borrower, as applicable; provided that the Administrative Agent may not be removed unless, on or prior to the date of such removal, the Administrative Agent (in its individual capacity) acting as Lender is relieved of all of its duties as Lender, pursuant to documentation reasonably satisfactory to the Administrative Agent. Upon any resignation or removal of the Administrative Agent, the Required Lenders shall have the right (with, so long as no Event of Default under Section 7.01(b), Section 7.01(g) or Section 7.01(h) exists, the consent of the Borrower, which shall not be unreasonably withheld) to appoint, on behalf of the Borrower and the Lenders, a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the ~~Swingline~~ Required Lenders within 30 days after the resigning Administrative Agent’s giving notice of its intention to resign, then the resigning Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a successor Administrative Agent. Notwithstanding the previous sentence, the Administrative Agent may at any time (without the consent of any Lender ~~and each Letter~~ but with, so long as no Event of ~~Credit Issuer~~Default under Section 7.01(b), Section 7.01(g) or Section 7.01(h) exists, the consent of the Borrower, which shall not be unreasonably withheld or delayed) appoint any of its Affiliates which is a commercial bank as a successor Administrative Agent ~~which~~ hereunder. If the Administrative Agent has resigned or been removed and no successor Administrative Agent has been appointed, the Lenders may perform all the duties of the Administrative Agent hereunder and the Borrower shall make all payments in respect of the Obligations to the applicable Lenders and for all other purposes shall deal directly with the Lenders. No successor Administrative Agent shall be deemed to be appointed hereunder until such Administrative Agent has accepted the appointment. Any such successor Administrative Agent shall be a commercial bank ~~with~~ having capital and retained earnings of at least $100,000,000 and an office in ~~the United States~~New York, ~~or an Affiliate of any such bank~~New York. Upon the acceptance of ~~its~~ any appointment as Administrative Agent hereunder by a ~~successor~~successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the ~~retiring~~ resigning or removed Administrative Agent. Upon the effectiveness of the resignation or removal of the Administrative Agent, ~~and~~ the ~~retiring~~ resigning or removed Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and ~~letters of credit and~~ not ~~instruments~~ investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the ~~contrary~~ extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. The Lenders are not partners or co-venturers, and no Lender shall be liable for the ~~Arrangers~~acts or omissions of, or (except as otherwise set forth herein in case of the ~~Co-Syndication Agents~~ Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the ~~Co-Documentation Agents named on~~ date such principal or interest has become due and payable pursuant to the ~~cover page~~ terms of this ~~Agreement shall not have any duties or liabilities under this~~ Agreement~~, except in its capacity, if any, as a Lender~~.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Southwestern Energy Co)

The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, Chase Bank Texas, National Association is hereby appointed to act as Administrative Agent, on behalf of the Lenders. Each of the ~~Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Lenders hereby irrevocably ~~appoints the Administrative Agent as its agent and~~ authorizes the Administrative Agent to take such actions on ~~its~~ behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The ~~bank serving as the~~ Administrative Agent ~~hereunder shall have~~ is hereby expressly authorized by the ~~same rights and powers in its capacity as a Lender as~~ Lenders, without hereby limiting any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoingimplied authority, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Standby Loans and all other amounts due to the Lenders hereunder (except amounts due in respect of any Offered Rate Loan which is to be paid to the Lender that made the Offered Rate Loan directly), and promptly to distribute to each Lender its share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Borrower of any Event of Default of which the Administrative Agent ~~shall not be subject to any fiduciary or other implied duties, regardless of whether a Default~~ has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise actual knowledge acquired in ~~writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1),~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as ~~expressly set forth herein,~~ received by the Administrative Agent. Neither Administrative Agent ~~shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or~~ nor any of its ~~Subsidiaries that is communicated~~ directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or ~~obtained~~ to make any inquiry concerning the performance or observance by the ~~bank serving as Administrative Agent or~~ Borrower of any of ~~its Affiliates~~ the terms, conditions, covenants or agreements contained in ~~any capacity~~this Agreement. The Administrative Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Administrative Agent may deem and treat the Lender which makes any ~~action taken or not taken by it with~~ Loan as the ~~consent or at the request~~ holder of the ~~Required Lenders (or~~ indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such ~~other number or percentage~~ Lender, given as provided herein, of the Lenders as shall be necessary under the circumstances as provided in Section 12.1) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgmenttransfer thereof. The Administrative Agent shall in all cases be ~~deemed not to have knowledge of any Default unless and until~~ fully protected in acting, or refraining from acting, in accordance with written ~~notice thereof is given to the Administrative Agent~~ instructions signed by the ~~Borrower or a Lender~~Required Lenders and, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth except as otherwise specifically provided herein, ~~(iv)~~ such instructions and any action or inaction pursuant thereto shall be binding on all the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative AgentLenders. The Administrative Agent ~~shall~~ shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~The~~ Neither the Administrative Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower on account of the failure of or delay in performance or breach by ~~telephone and believed~~ any Lender of any of its obligations hereunder or any Lender on account of the failure of or delay in performance or breach by ~~it to be made by~~ any Lender or the ~~proper Person, and shall not incur~~ Borrower of any ~~liability for relying thereon~~of their respective obligations hereunder or in connection herewith. The Administrative Agent may ~~consult with~~ execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel ~~(who may be counsel for the Borrower), independent accountants and other experts~~ selected by ~~it,~~ it with respect to all matters arising hereunder and shall not be liable for any action taken or ~~not taken~~ suffered in good faith by it in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of Lenders hereby acknowledge that the Administrative Agent ~~and~~ shall be under no duty to take any ~~such sub-agent, and~~ discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall ~~apply~~ be requested in writing to ~~their respective activities in connection with~~ do so by the ~~syndication of the credit facilities provided for herein as well as activities as Administrative Agent~~Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided ~~in this paragraph~~below, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Swingline Lender, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the ~~right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Borrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, ~~the Swingline Lender and each Letter of Credit Issuer,~~ appoint a successor ~~Administrative Agent which shall be~~ Agent, having a ~~bank with an office in the United States,~~ combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of ~~its~~ any appointment as Administrative Agent hereunder by a ~~successor~~successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative ~~Agent,~~ Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.~~ After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 8.05 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent, in its individual capacity and not as Administrative Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Administrative Agent, and the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrower AND (II) TO INDEMNIFY AND HOLD HARMLESS THE ADMINISTRATIVE AGENT AND ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, ON DEMAND, IN THE AMOUNT OF SUCH PRO RATA SHARE, FROM AND AGAINST ANY AND ALL LIABILITIES, TAXES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST IT IN ANY WAY RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY ACTION TAKEN OR OMITTED BY IT UNDER THIS AGREEMENT TO THE EXTENT THE SAME SHALL NOT HAVE BEEN REIMBURSED BY THE BORROWER (INCLUDING WITHOUT LIMITATION, ALL LIABILITIES, TAXES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGEMENTS, SUITS, COSTS, EXPENSES, OR DISBURSEMENTS ARISING FROM THE SOLE CONTRIBUTORY NEGLIGENCE OF THE ADMINISTRATIVE AGENT); PROVIDED THAT NO LENDER SHALL BE LIABLE TO THE ADMINISTRATIVE AGENT FOR ANY PORTION OF SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE ADMINISTRATIVE AGENT OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Revolving Credit Facility Agreement (Lennox International Inc)

Appears in 1 contract

Sources: Credit Agreement (Symmetry Holdings Inc)

Appears in 1 contract

Sources: Credit Agreement (Applied Materials Inc /De)

The Administrative Agent. Each of the ~~Lenders, the Swingline Lender and each Letter of Credit Issuer~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Swingline Lender, each Letter of Credit Issuer~~ Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, ~~the Swingline Lender and each Letter of Credit Issuer,~~ appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and ~~letters of credit and~~ not ~~instruments~~ investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the ~~contrary~~ extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the ~~Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties~~ Lenders or ~~liabilities under this Agreement, except in its capacity~~other Persons, if any, identified in this Agreement as an Arranger, Syndication Agent or Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than, in the case of such Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders or such other Persons shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders and such other Persons in their respective capacities as Arranger, Syndication Agent or Documentation Agent, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.

Appears in 1 contract

Sources: Term Loan Agreement (Lam Research Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Company or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the ~~Borrower~~ Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the ~~Borrower~~Company. Upon any such resignation, the Required Lenders shall have the ~~right,~~ right to appoint a successor with the written consent of the ~~Borrower (~~Company, which consent shall not to be unreasonably ~~withheld~~withheld or delayed; ~~provided~~ provided, that no such consent of the ~~Borrower~~ Company shall be required if an Event of Default ~~has~~ shall have occurred and ~~is continuing), to appoint a successor~~be continuing on the date of such appointment. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by ~~the~~ any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the~~ such Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not ~~instruments~~ investments in a business enterprise or securities. Each Lender further ~~represents~~ confirms that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Company and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or ~~thereunder. Notwithstanding anything herein~~ thereunder and in deciding whether or to the ~~contrary~~ extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the ~~Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity~~Lenders, if any, identified in this Agreement as a Co-Syndication Agent or a Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Co-Syndication Agent or Co-Documentation Agent, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.

Appears in 1 contract

Sources: Credit Agreement (Fuller H B Co)

The Administrative Agent. SECTION IX.1. Each Lender hereby appoints Bank of ~~the Lenders, the Swingline Lender~~ America as its Administrative Agent under and for purposes of this Agreement and each ~~Letter of~~ other Credit ~~Issuer hereby irrevocably appoints the Administrative Agent as its agent and~~ Document. Each Lender authorizes the Administrative Agent to ~~take~~ act on behalf of such ~~actions on its behalf~~ Lender under this Agreement and each other Credit Document and, in the absence of other written instructions from the Required Lenders received from time to time by the Administrative Agent (with respect to which the Administrative Agent agrees that it will comply, except as otherwise provided in this Section 9.1 or as otherwise advised by counsel), to exercise such powers hereunder and thereunder as are specifically delegated to or required of the Administrative Agent by the terms ~~hereof~~hereof and thereof, together with such ~~actions and~~ powers as ~~are~~ may be reasonably incidental thereto. ~~The bank serving as the Administrative Agent hereunder~~ Each Lender hereby indemnifies (which indemnity shall ~~have the same rights and powers in its capacity as a Lender as~~ survive any ~~other Lender and may exercise the same as though it were not~~ termination of this Agreement) the Administrative Agent, pro rata according to such Lender's Percentage, from and ~~such bank~~ against any and ~~its Affiliates may accept deposits from~~all liabilities, ~~lend money to and generally engage in~~ obligations, losses, damages, claims, costs or expenses of any kind ~~of business with the Borrower~~ or nature whatsoever which may at any ~~Subsidiary~~ time be imposed on, incurred by, or ~~other Affiliate thereof as if it were not~~ asserted against, the Administrative Agent ~~hereunder~~in any way relating to or arising out of this Agreement and any other Credit Document, including reasonable attorneys' fees, and as to which the Administrative Agent is not reimbursed by the Parent and the Borrowers; provided, that no Lender shall be required to reimburse the Agent for its gross negligence or willful misconduct. The Administrative Agent shall not be required to take any action hereunder or under any other Credit Document, or to prosecute or defend any suit in respect of this Agreement or any other Credit Document, unless it is indemnified hereunder to its satisfaction. If any indemnity in favor of the Administrative Agent shall be or become, in the determination of the Administrative Agent inadequate, the Administrative Agent may call for additional indemnification from the Lenders and cease to do the acts indemnified against hereunder until such additional indemnity is given. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, the Administrative Agent shall not have any duties or ~~obligations~~ responsibilities, except those expressly set forth herein~~. Without limiting the generality of the foregoing~~, ~~(a)~~ nor shall the Administrative Agent ~~shall not~~ have or be ~~subject~~ deemed to have any fiduciary ~~or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have~~ relationship with any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1) or in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the no implied covenants, ~~agreements~~ functions, responsibilities, duties, obligations or ~~other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of~~ liabilities shall be read into this Agreement or any other ~~agreement, instrument~~ Loan Document or ~~document, or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to~~ otherwise exist against the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Swingline Lender, each Letter of Credit Issuer and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, the Swingline Lender and each Letter of Credit Issuer, appoint a successor Administrative Agent which shall be a bank with an office in the United States, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 12.5 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Credit Agreement (Bergen Brunswig Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of ~~its~~ the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Amendment and Restatement Agreement (On Semiconductor Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any ~~Subsidiary~~ of its Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~8.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~8.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 3 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the~~ The Administrative Agent may resign at any time by ~~notifying~~ giving at least thirty days prior written notice thereof to the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower, whether or not a successor Administrative Agent has been appointed. Upon any such resignation, the Required Lenders shall have the ~~right, with the consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing),~~ right to appoint a ~~successor~~successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent ~~gives~~ giving of notice of ~~its~~ resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. In either case, such appointment shall be subject to the prior written approval of the Borrower (which approval may not be unreasonably withheld and shall not be required while an Event of Default has occurred and is continuing). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. Upon the acceptance of ~~its~~ any appointment as Administrative Agent ~~hereunder~~ by a ~~successor~~successor Administrative Agent, such successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. ~~The fees payable~~ Upon the acceptance of appointment as Administrative Agent by a successor Administrative Agent, the ~~Borrower~~ retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents. Prior to a any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the retiring Administrative Agent shall take such action as may be reasonably necessary to assign to the successor Administrative Agent its rights as Administrative Agent under the Loan Documents. Notwithstanding the preceding paragraph, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within thirty days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the ~~same as those payable~~ other Loan Documents and (ii) the Required Lenders shall succeed to ~~its predecessor unless otherwise agreed between~~ and become vested with all the ~~Borrower~~ rights, powers, privileges and duties of the retiring Administrative Agent; provided that (A) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such ~~successor~~Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall directly be given or made to each Lender and each Issuing Bank. ~~After~~ Following the effectiveness of the Administrative Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~12.5~~ 8.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it the retiring Administrative Agent was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon ~~the Administrative~~ any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ Nothing in the ~~contrary~~ Loan Documents shall impose on any Agent other than the ~~Arrangers~~Administrative Agent, ~~the Co-Syndication Agents and the Co-Documentation Agents named~~ in its capacity as an Agent, or on ~~the cover page of this Agreement shall not have~~ any ~~duties or liabilities under this Agreement~~Arranger, ~~except~~ other than in its capacity, ~~if any~~as applicable, as a Lender, any obligation or liability whatsoever.

Appears in 1 contract

Sources: Credit Agreement (Applied Materials Inc /De)

Appears in 1 contract

Sources: Credit Agreement (J C Penney Co Inc)

The Administrative Agent. ~~Each~~ Subject to the further provisions of this Article VII, each of the ~~Lenders, the Swingline Lender~~ Lenders and each ~~Letter of Credit Issuer~~ Swingline Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Borrowers or ~~any Subsidiary~~ their Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing ~~as directed~~ by the ~~Required~~ Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~8.01), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Guarantor, the Borrowers or any of ~~its~~ their Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any ~~capacity~~capacity (other than as Administrative Agent). The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the ~~Required~~ Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~8.01) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the applicable Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made by any other Person in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness (other than its own execution) or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing reasonably believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for either Borrower or the ~~Borrower~~Guarantor), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective ~~Related Parties~~Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the ~~Related Parties~~ Affiliates of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Swingline ~~Lender, each Letter of Credit Issuer~~ Banks and the ~~Borrower~~Borrowers. Upon any such resignation, the ~~Required~~ Majority Lenders shall have the right, ~~with~~ subject to the ~~consent~~ approval of the ~~Borrower~~ Borrowers (~~not to be unreasonably withheld;~~ provided ~~that~~ no ~~such consent of the Borrower shall be required if an~~ Event of Default ~~has occurred and is continuing~~exists), to appoint a successor. If no successor shall have been so appointed by the ~~Required~~ Majority Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the Swingline ~~Lender and each Letter of Credit Issuer~~Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Borrower~~ Borrowers and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 8.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: 364 Day Auction Bid Advance and Revolving Credit Facility Agreement (Credit Suisse First Boston Usa Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline~~ Issuing Lender ~~and each Letter of Credit Issuer~~ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~The bank serving as the Administrative Agent hereunder~~ Chase shall have the same rights and powers in its capacity as a Lender hereunder as any other Lender and may exercise the same as though it Chase were not the Administrative Agent, and ~~such bank~~ Chase and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Borrower~~ any Credit Party or any Subsidiary or other Affiliate of any thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by this Agreement and the other Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 12.1)~~Lenders, and (c) except as expressly set forth ~~herein~~herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Borrower~~ any Credit Party or any of ~~its~~ their respective Subsidiaries that is communicated to or obtained by ~~the bank serving as Administrative Agent~~ Chase or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if provided herein, with the consent or ~~such other number or percentage~~ at the request of the Required Revolving Credit Lenders, the Required Term Loan Lenders ~~as shall be necessary under~~ or the ~~circumstances as provided in Section 12.1)~~ Required Incremental Loan Lenders, or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this ~~Agreement~~Agreement or the other Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection ~~herewith~~herewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this ~~Agreement~~ Agreement, the other Loan Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall not, except to the extent expressly instructed by the Required Lenders with respect to collateral security under the Security Documents, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its ~~duties~~ duties, and exercise its rights and ~~powers~~ powers, by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through ~~their respective~~ its Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to ~~their respective~~ its activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative ~~Agent~~ Agent, as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Lender and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a ~~successor~~successor Administrative Agent. If no successor shall have been so appointed ~~by the Required Lenders~~ and shall have accepted such appointment within 30 days after ~~the~~ such retiring Administrative Agent gives notice of its resignation, then ~~the~~ such retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Lender, appoint a successor Administrative ~~Agent~~ Agent, which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative ~~Agent hereunder~~ Agent, by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After ~~the~~ an Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 10.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Issuing Lender or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Issuing Lender or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement~~Agreement and the other Loan Documents, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Credit Agreement (Lamar Advertising Co)

Appears in 1 contract

Sources: Second Lien Credit Agreement (RedPrairie Holding, Inc.)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any ~~Subsidiary~~ of its Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct, BUT REGARDLESS OF THE PRESENCE OF ORDINARY NEGLIGENCE. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may (and, in the event (i) neither the Administrative Agent nor any Affiliate of the Administrative Agent, as a Lender, has any Revolving Exposure or unused Commitment and (ii) the Required Lenders so request, the Administrative Agent shall) resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower (and, so long as no Event of Default has occurred which is continuing, subject to the consent of ~~the Borrower (~~Borrower, not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 60 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders~~Lenders and the Issuing Bank, in consultation with the ~~Swingline Lender and each Letter of Credit Issuer~~Borrower, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~Houston, Texas, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its ~~sub-~~sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Credit Agreement (DXP Enterprises Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower or any of ~~its~~ the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.

Appears in 1 contract

Sources: Credit Agreement (On Semiconductor Corp)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and on behalf of the Holders of Secured Obligations and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent~~Agent or (vi) the perfection or priority of any of the Liens on any of the Collateral. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more ~~sub-agents~~ subagents appointed by the Administrative Agent. The Administrative Agent and any such ~~sub-agent~~ subagent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such ~~sub-agent~~ subagent and to the Related Parties of the Administrative Agent and any such ~~sub-agent~~subagent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent not to be unreasonably withheld~~; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing~~), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative ~~Agent which~~ Agent; provided, that if an Event of Default has occurred and is continuing, no consent of the Borrower shall be ~~a bank with an office in the United States, or an Affiliate of any such bank~~required. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ None of the Lenders, if any, identified in this Agreement as a Co-Syndication Agent or a Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the ~~contrary the Arrangers, the~~ relevant Lenders in their capacity as Co-Syndication Agents ~~and the~~ or Co-Documentation Agents ~~named~~ as it makes with respect to the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender, including the Issuing Banks, in accordance with Section 9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or with respect to any Credit Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Credit Documents, with the consent of the Administrative Agent. The Lenders, including the Issuing Banks, are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~cover page~~ Lenders to enforce the payment of the principal of and interest on any Loan or any Letter of Credit after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Holders of Secured Obligations within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Secured Obligations (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Holders of Secured Obligations upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of Secured Obligations any Credit Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Holders of Secured Obligations. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) upon termination of the Commitments and payment and satisfaction of all of the Obligations (other than contingent indemnity obligations and Obligations in respect of Hedging Agreements) at any time arising under or in respect of this Agreement or the Credit Documents or the transactions contemplated hereby or thereby; (ii) as permitted by, but only in accordance with, the terms of the applicable Credit Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Credit Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Holders of Secured Obligations herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent shall not ~~have~~ be required to execute any ~~duties~~ such document on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or ~~liabilities under this Agreement~~create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, ~~except~~ and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of the Borrower or any Subsidiary in respect of) all interests retained by the Borrower or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. The Lenders and the Borrower irrevocably authorize the Administrative Agent, at its option and in its ~~capacity~~discretion, ~~if any~~in the event that, at any time, the Administrative Agent determines that it does not have a perfected Lien on (i) such fee-owned real properties of the Credit Parties as ~~a Lender~~constitute at least seventy-five percent (75%) of the aggregate market value of all fee-owned real properties of the Credit Parties, and/or (ii) such motor vehicles of the Credit Parties as constitute at least seventy-five percent (75%) of the aggregate market value of motor vehicles of the Credit Parties, to obtain perfected Liens on such unencumbered fee-owned real properties and/or unencumbered motor vehicles as the Administrative Agent deems necessary to reach the seventy-five percent (75%) aggregate market value threshold. The Borrower shall provide the Administrative Agent with all information reasonably requested by the Administrative Agent from time to time related to assets owned by the Credit Parties, shall cooperate fully with the Administrative Agent with respect to the performance of due diligence and the execution of documents necessary to facilitate such Lien perfection and shall pay all reasonable costs and expenses incurred by the Administrative Agent and its counsel in connection therewith.

Appears in 1 contract

Sources: Credit Agreement (Inergy L P)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Borrower~~ Parent or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Borrower~~ Parent or any of ~~its~~ the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Parent, the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrower~~a Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, ~~or an Affiliate~~ New York, and having a combined capital and surplus of ~~any such bank~~at least $500,000,000. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, the Guarantee Agreement, the Security Documents, any related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein to~~ The parties hereto acknowledge that the ~~contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall~~ Arrangers (in their capacity as such) do not have any duties or ~~liabilities~~ responsibilities under ~~this~~ any of the Loan Documents and will not be subject to liability thereunder to any of the Loan Parties for any reason. No Secured Party shall have any right individually to realize upon any of the Collateral, it being understood and agreed that all powers, rights and remedies under the Security Documents may be exercised solely by the Collateral Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loan Document Obligations (as defined in the Collateral Agreement) as a credit on account of the purchase price for any Collateral payable by the Administrative Agent on behalf of the Lenders at such sale or other disposition. The Lenders hereby authorize the Administrative Agent and Collateral Agent to enter into (i) any Second Lien Intercreditor Agreement and (ii) the First Lien Intercreditor Agreement, ~~except~~ and, in each case, acknowledge that they will be bound thereby. The Collateral Agent shall be entitled to the benefits of this Article on the same basis as if named herein as the Administrative Agent, and also shall be entitled to the exculpatory provisions and rights set forth in the Collateral Agreement and other Security Documents. The rights of the Collateral Agent under the Loan Documents may not be amended or modified in a manner adverse to the Collateral Agent without its ~~capacity, if any, as a Lender~~prior written consent.

Appears in 1 contract

Sources: Amendment and Restatement Agreement (American Axle & Manufacturing Holdings Inc)

The Administrative Agent. Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~hereof~~of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~herein~~in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~hereby~~ by the Loan Documents that the Administrative Agent is required to exercise in writing ~~as directed~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (c) except as expressly set forth ~~herein~~in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or ~~willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~wilful misconduct. The Administrative Agent shall not be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement~~any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~herein~~in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~this Agreement~~ any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere ~~herein~~in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the~~ each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor the Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent ~~which~~ that shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be he discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. ~~Notwithstanding anything herein~~ The provisions of this Article shall apply to the ~~contrary~~ Collateral Agent as though named herein as the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a LenderAdministrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Huntsman Packaging Corp)

Appears in 1 contract

Sources: Credit Agreement (Pathmark Stores Inc)

Appears in 1 contract

Sources: Credit Facility Agreement (Itt Industries Inc)

The Administrative Agent. (a) Each of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~ Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. . (b) The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ai) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bii) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02), and (ciii) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~12.1~~9.02) or in the absence of its own gross negligence or willful ~~misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment~~misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default (other than a Default or Event of Default under clause (a) or (b) of Article VII in respect of any amount payable to the Administrative Agent) unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article 6 IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (e) The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (f) Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the ~~Swingline Lender, each Letter of Credit Issuer~~ Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (not to be unreasonably withheld; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing)~~Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders,~~ Lenders and the ~~Swingline Lender and each Letter of Credit Issuer~~Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in ~~the United States~~New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~12.5~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. . (g) Each Lender acknowledges ~~and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not instruments in a business enterprise or securities. Each Lender further represents~~ that it ~~is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and~~ has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything herein to the contrary the Arrangers, the Co-Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall not have any duties or liabilities under this Agreement, except in its capacity, if any, as a Lender.this

Appears in 1 contract

Sources: Credit Agreement (Perot Systems Corp)

Common use of The Administrative Agent Clause in Contracts