The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and authorizes the Administrative Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, 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 Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure

Appears in 3 contracts

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

The Administrative Agent. Each of the ~~Lenders~~ Lenders, on behalf of itself and any of its Affiliates that are Secured Parties and the Issuing Banks hereby irrevocably appoints ~~the entity named~~ JPMCB (or any successor appointed pursuant hereto) as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors to serve as administrative~~ agent ~~and collateral agent under the Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Any 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~~Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity, and such Person and its Affiliates may accept deposits from, lend money to~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder~~ hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and ~~without~~ acknowledge that the Administrative Agent shall not be under any ~~duty~~ obligation to ~~account therefor~~ provide such information to ~~the Lenders or the Issuing Banks~~them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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~~continuing and without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law and instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law~~laws, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower,~~ any ~~Subsidiary~~ Loan Party or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct ~~(such absence to be presumed unless otherwise~~ as determined by the final non-appealable judgment of a court of competent ~~jurisdiction by a final and nonappealable 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 ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings, the Borrower, a Lender~~ any Borrower or ~~an Issuing Bank~~any Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default or Event of Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document or~~ document, (v) the creation, perfection or priority of Liens on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere in ~~this Agreement or~~ any ~~other~~ Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or ~~satisfaction~~ (vii) the properties, books or records of any ~~condition that expressly refers to~~ Loan Party or any Affiliate thereof. Each Lender agrees that, except with the ~~matters described therein being acceptable or satisfactory to~~ written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other Loan Document, accelerate the Obligations under any Loan Documents, or exercise any right that it might otherwise have under applicable law or otherwise to credit bid at foreclosure sales, UCC sales, any sale under Section 363 of the Bankruptcy Code or other similar dispositions of Collateral. Notwithstanding the foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of proofs of claim in a case under the Bankruptcy Code. No holder of Secured Hedging Obligations shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Guarantor under this Agreement. Notwithstanding anything ~~herein~~ to the ~~contrary~~contrary contained herein or in any of the other Loan Documents, the Borrowers, the Administrative Agent and each Secured Party agrees that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty, it being understood 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 Loan 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), (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 sale or other disposition and (B) 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. Each of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to Secured Hedging Obligations or by entering into documentation in connection with Banking Services Obligations, 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 Lenders: (a) consent to the sale or other disposition of all or any portion of the Collateral free and clear of the Liens securing the Secured Obligations in connection with any such sale or other transfer 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 sale or other 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 sale or other 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 sale, 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 Lender or other Secured Party; it being understood that no Lender shall be required to fund any amounts in connection with any purchase of all or any portion of the Collateral by the Administrative Agent pursuant to the foregoing clauses (b), (c) or (d) without its prior written consent. Each Lender and other 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 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) shall be entitled to be, and shall be, credit bid by the Administrative Agent 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 of any such claim for purposes of the credit bid or purchase so long as the fixing or liquidation of such claim would not unduly delay the ability of the Administrative Agent to credit bid the Secured Obligations or purchase the Collateral at such sale or other disposition. In the event that the Administrative Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot be estimated without unduly delaying the ability of the Administrative Agent to credit bid or purchase in accordance with the second preceding paragraph, then those of the contingent or unliquidated claims not so estimated shall be disregarded, shall not be ~~liable for~~credit bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral purchased by means of such credit bid. Each Secured Party whose Secured Obligations are credit bid under clauses (b), (c) or (d) of the third preceding paragraph shall be ~~responsible for~~ entitled to receive interests in the Collateral or other asset or assets 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 percentage obtained by dividing (x) the amount of the Secured Obligations of such Secured Party that were credit bid in such credit bid, sale or other disposition, by (y) the aggregate amount of all Secured Obligations that were credit bid in such credit bid, sale or other disposition. In addition, in case of the pendency of any ~~loss, cost or expense suffered by the Borrower~~ proceeding under any Debtor Relief Law or any ~~Lender~~ other judicial proceeding relative to any Loan Party, each Secured Party agrees that the Administrative Agent (irrespective of whether the principal of any Loan or LC Exposure shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise: (a) to file and prove a ~~result of, any determination~~ claim for the whole amount of the ~~Revolving~~ principal and interest owing and unpaid in respect of the Loans, LC Exposure and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and all other amounts to the extent due to the Lenders, the Issuing Banks and the Administrative Agent under Sections 2.12 and 9.03) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and (c) any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and Issuing Bank to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amount to the extent due to the Administrative Agent under Sections 2.12 and 9.03. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the ~~component amounts thereof~~ rights of any Lender or any Issuing Bank or to authorize the Administrative Agent to vote in respect of the ~~Weighted Average Yield~~claim of any Lender or any Issuing Bank in any such proceeding. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be have been made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the ~~issuance, extension, renewal or increase~~ issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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~~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 of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure

Appears in 3 contracts

Sources: Abl Credit Agreement (Party City Holdco Inc.), Abl Credit Agreement (Party City Holdco Inc.), Abl Credit Agreement (Party City Holdco Inc.)

The Administrative Agent. (a) Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably appoints ~~the entity named~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors to serve as administrative~~ agent and ~~collateral agent under the Loan Documents and~~ authorizes ~~the Administrative Agent~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of hereof and the other 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~~ Each of the Lenders hereby irrevocably appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. as its collateral agent and authorizes ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. to take such actions on its behalf and to exercise such powers as are delegated to the collateral agent by the terms hereof and the ~~Issuing Banks hereby grants to~~ other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative ~~Agent~~ Agent, the collateral agent and the Lenders, and no Loan Party shall have rights as a third party beneficiary of any ~~required powers of attorney to execute any Security Document governed by the laws~~ of such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent”~~ provisions. (~~or any similar term~~b) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. 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~~ the term “Lender” or “Lenders” shall, 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~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Company or any Restricted Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks.~~ Lenders. (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~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 ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary,~~ expressly provided for herein or as by the ~~Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the~~ other Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, ; and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Company or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided ~~in the Loan Documents~~herein) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice describing such Default thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Company or a Lender ~~or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document~~ therein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. . (d) The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. 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,~~ Loan that by its terms must be fulfilled to the satisfaction of a ~~Lender or an Issuing Bank~~Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender ~~or such Issuing Bank~~ unless the Administrative Agent shall have received notice to the contrary from such Lender ~~or such Issuing Bank~~ prior to the making of such ~~Loan or the issuance of such Letter of Credit~~Loan. 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. . (e) The Administrative Agent may perform any of 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 of and all ~~their~~ of its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (f) The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may ~~resign~~ at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall~~ give notice of its ~~intent to resign~~ resignation to the ~~Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company and (unless an Event of Default under clause (a), (b), (h) or (i) of Article VII shall have occurred and be continuing) with the consent of the ~~Borrower~~ Company (which consent of the Company shall not be unreasonably withheld or delayed), 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 thirty (30) days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent ~~may,~~ may on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon~~ Agent meeting the ~~acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all~~ qualifications set forth above; provided that if the ~~rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring~~ Administrative Agent shall ~~be discharged from its duties and obligations hereunder and under~~ notify the ~~other Loan Documents. The fees payable by Holdings~~ Company and the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by Holdings, the Borrower and such successor. Notwithstanding the foregoing, in the event Lenders that no ~~successor Administrative Agent shall have been so appointed and shall have~~ qualifying Person has accepted such ~~appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign~~appointment, ~~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~~ then such resignation ~~stated~~ shall nonetheless become effective in accordance with such ~~notice,~~ notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan ~~Documents; provided that, solely for purposes~~ Documents (except that in the case of ~~maintaining~~ any collateral security ~~interest granted to~~ held by the Administrative Agent on behalf of the Lenders under any ~~Security Document for the benefit~~ of the ~~Secured Parties~~Loan Documents, 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~~ collateral security until such time as a successor Administrative Agent is ~~appointed~~ appointed) and ~~accepts such appointment in accordance with this paragraph~~ (~~it being understood~~ 2) all payments, communications and ~~agreed that~~ determinations provided to be made by, to or through the ~~retiring~~ Administrative Agent shall ~~have no duty~~ instead be made by or ~~obligation~~ to ~~take any further action under any Security Document~~each Lender directly, ~~including any action required to maintain the perfection of any~~ until such ~~security interest), and (b)~~ time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent~~; provided that (i) all payments required to be made hereunder or under any other Loan Document to~~ , and the ~~Administrative Agent for the account of any Person other than the~~ retiring Administrative Agent shall be ~~made directly~~ discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this subsection). The fees payable by the Company to ~~such Person and (ii) all notices and other communications required or contemplated to be given or made to the~~ a successor Administrative Agent shall ~~also directly~~ be ~~given or made~~ the same as those payable to ~~each Lender~~ its predecessor unless otherwise agreed between the Company and ~~each Issuing Bank~~such successor. ~~Following~~ After the ~~effectiveness of the~~ retiring Administrative Agent’s resignation ~~from its capacity as such~~hereunder and under the other Loan Documents, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 the retiring Administrative Agent was acting as Administrative Agent. If the Person serving as Administrative Agent ~~and in respect~~ is a Defaulting Lender pursuant to clause (d) of the ~~matters referred~~ definition of “Defaulting Lender,” the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Company and such Person, remove such Person as Administrative Agent, and the Company in consultation with the Lenders shall, unless an Event of Default shall have occurred and be continuing, in which case the Required Lenders in consultation with the Company shall, appoint a successor, which shall be a bank with an office in the ~~proviso under clause~~ United States, or an Affiliate of any such bank with an office in the United States; provided that, without the consent of the Company (anot to be unreasonably withheld), the Required Lenders shall not be permitted to select a successor that is not a U.S. financial institution described in Treasury Regulation Section 1.1441-1(b)(2)(ii) ~~above~~or a U.S. branch of a foreign bank described in Treasury Regulation Section 1.1441-1(b)(2)(iv)(A). If no such successor shall have been appointed by the Company or the Required Lenders, as applicable, and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with notice on the Removal Effective Date. (g) Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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,~~ . (h) To the extent required by ~~delivering its signature page to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or~~ any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toapplicable Laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the ~~Lenders on~~ provisions of Section 2.16, each Lender shall indemnify and hold harmless the ~~Effective Date~~ 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 ~~Funding Date~~Administrative Agent by the 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, 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). ~~Except with respect~~ A certificate as to the ~~exercise~~ amount of ~~setoff rights of~~ such payment or liability delivered to 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 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~~shall be conclusive absent manifest error. ~~In the event of a foreclosure by~~ Each Lender hereby authorizes 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 set off and apply any ~~of the Loan Document Obligations as a credit on account of the purchase price for~~ and all amounts at any ~~collateral payable by the Administrative Agent on behalf of the Secured Parties at~~ time owing to such sale or other disposition. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 Lender under this Agreement or any other Loan Document ~~except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party to~~ against any ~~such Hedging Agreement shall be deemed to have appointed~~ amount due the Administrative Agent under this subsection (i). The agreements in this subsection (i) 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 Commitments and the repayment, satisfaction or discharge of all other Obligations. (i) The Lenders irrevocably agree: (i) that any Lien on any Property granted to ~~serve~~ or held by the Administrative Agent under any Loan Document shall be automatically released (A) upon termination of the Commitments and payment in full of all Obligations (in each case, other than (x) obligations under Secured Hedge Agreements, (y) Cash Management Obligations and (z) contingent reimbursement and indemnification obligations, in each case not yet accrued and payable), (B) at the time the Property subject to such Lien is transferred or to be transferred as ~~administrative agent and collateral agent~~ part of or in connection with any transfer permitted hereunder or under any other Loan Document to any Person (other than in the case of a transfer by a Loan Party, any transfer to another Loan Party), (C) subject to Section 9.02, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such greater number of Lenders as may be required pursuant to Section 9.02), or (D) if the Property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guarantee under the Guarantee and Security Agreement pursuant to clause (iii) below; (ii) (A) to release or subordinate any Lien on any Property granted to or held by the Administrative Agent under any Loan ~~Documents~~ Document to the holder of any Lien on such property that is permitted by Section 6.02(e) and ~~agreed~~ (B) that the Administrative Agent is authorized (but not required) to release or subordinate any Lien on any Property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such Property that is permitted by any other clause of Section 6.02; and (iii) that any Guarantor shall be automatically released from its obligations under the Guarantee and Security Agreement if such Person ceases to be ~~bound~~ a Restricted Subsidiary as a result of a transaction permitted hereunder. Upon request by the Administrative Agent at any time, the Required Lenders (or such greater number of Lenders as may be required pursuant to Section 9.02) will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of Property, or to release any Guarantor from its obligations under the Guarantee and Security Agreement pursuant to this subsection (i). In each case as specified in this subsection (i), the Administrative Agent will (and each Lender irrevocably authorizes the Administrative Agent to), at the Company’s expense, execute and deliver to the applicable Loan ~~Documents~~ Party such documents as ~~a Secure~~such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under

Appears in 3 contracts

Sources: Credit Agreement (Dole PLC), Credit Agreement (Dole PLC), Credit Agreement (Dole Food Co Inc)

The Administrative Agent. (a) Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and~~ as its ~~successors to serve as 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 of hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto~~. In addition, to~~ . (b) The Administrative Agent shall also act as the ~~extent required~~ “collateral agent” under the ~~laws of any jurisdiction other than the United States of America~~Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the Issuing Banks hereby ~~grants to~~ irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and such Issuing Bank for purposes of acquiring, holding and enforcing any ~~required~~ and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers ~~of attorney to execute~~ and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any ~~Security Document governed~~ co-agents, sub-agents and attorneys-in-fact appointed by the ~~laws~~ Administrative Agent pursuant hereto for purposes of ~~such jurisdiction~~ holding or enforcing any Lien on ~~such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that~~ the ~~use of the term “agent”~~ Collateral (or any ~~similar term~~portion thereof) ~~herein~~ granted under the Collateral Documents, or in for exercising any ~~other Loan Document with reference~~ rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the ~~Administrative Agent is not intended to connote any fiduciary duty or other implied~~ benefits of all provisions of this Article VIII and Article IX (~~or express~~including Section 9.03, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) ~~obligations arising under agency doctrine of any applicable law. Instead, such term is used~~ as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties.~~ if set forth in full herein with respect thereto. (c) The ~~Person~~ bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such ~~Person~~ bank and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without~~ hereunder. (d) To the extent required by 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 in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 Banklaws, the Administrative Agent may ~~presume that such condition is satisfactory~~ withhold from any payment to ~~such~~ any Lender an amount equivalent to any applicable withholding Tax. Without limiting or ~~such Issuing Bank unless~~ expanding the provisions of Section 2.16, each Lender shall indemnify and hold harmless the Administrative Agent ~~shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making~~ 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 ~~such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be~~ any counsel for the ~~Borrower), independent accountants and other experts selected~~ Administrative Agent) incurred by ~~it, and shall not be liable for any action taken~~ or ~~not taken by it in accordance with~~ asserted against the ~~advice of any such counsel, accountants or experts. The~~ Administrative Agent ~~may perform any~~ as a result of ~~and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by~~ the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties failure of the Administrative Agent ~~and~~ to properly withhold any ~~such sub-agent and shall apply~~ Tax from amounts paid to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 such Lender for any ~~Person other than~~ reason (including, 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 be ~~made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to~~ conclusive absent manifest error. Each Lender hereby authorizes 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 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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 off and apply any ~~of the Loan Document Obligations as a credit on account of the purchase price for~~ and all amounts at any ~~collateral payable by the Administrative Agent on behalf of the Secured Parties at~~ time owing to such sale or other disposition. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 Lender under this Agreement or any other Loan Document ~~except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party to~~ against any ~~such Hedging Agreement shall be deemed to have appointed~~ amount due the Administrative Agent ~~to serve as administrative agent~~ under this clause (d). The agreements in this clause (d) 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 Commitments and ~~collateral agent under~~ the ~~Loan Documents~~ repayment, satisfaction or discharge of all other Obligations. The term “Lender” shall, for purposes of this clause (d), include any Issuing Bank and ~~agreed to be bound by the Loan Documents as a Secure~~any Swingline Lender.

Appears in 3 contracts

Sources: Credit Agreement (Caseys General Stores Inc), Credit Agreement (Caseys General Stores Inc), Credit Agreement (Caseys General Stores Inc)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non-appealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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 ~~intent to resign~~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 ~~and~~ or the Issuing ~~Banks~~Banks 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 (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 successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. Any resignation by SMBC as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and ~~in respect~~ a Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. Each Lender ~~and each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant Documents to which it ~~shall become~~ is a ~~Lender hereunder, shall be deemed~~ party. Except as otherwise provided in Section 9.02(b) with respect to ~~have acknowledged receipt of, and consented to and approved,~~ this ~~Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~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 ~~Lenders on~~ Loan Documents, provided that, without the ~~Effective Date~~ prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the ~~Funding Date. Except~~ 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 ~~exercise~~ Collateral, 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 ~~setoff rights~~ either a disposition of property (including, without limitation, any ~~Lender~~ property subject to a participation or repurchase transaction) not prohibited 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) in accordance with Section ~~9.08~~ 9.02(c) and (3) spread Liens to any Designated Indebtedness or ~~with respect to a Lender’s right to file a proof of claim~~ Hedging Agreement Obligations (as such terms are defined in ~~an insolvency proceeding, 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~~ Security Agreement) 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, Guarantee 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Security Agreement. 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 Secure.

Appears in 3 contracts

Sources: Senior Secured Revolving Credit Agreement (Blue Owl Credit Income Corp.), Senior Secured Credit Agreement (Blue Owl Capital Corp II), Senior Secured Revolving Credit Agreement (Blue Owl Credit Income Corp.)

The Administrative Agent. Each of the ~~Lenders~~ Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and~~ as its ~~successors to serve as administrative~~ agent ~~and collateral agent under the Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In ~~addition~~furtherance of the foregoing, ~~to the extent required under the laws of any jurisdiction other than the United States of America~~and not in limitation, each of the Lenders ~~and~~ authorizes the ~~Issuing Banks hereby grants~~ Administrative Agent to enter into one or more intercreditor agreements acceptable to the Administrative Agent in its sole discretion with parties to any ~~required powers~~ Permitted Receivables Facility. Such intercreditor agreements may provide for, among other things, (i) the Administrative Agent’s and the Lenders’ forbearance of, and other limitations on, any exercise of ~~attorney~~ remedies in respect of any equity interests in any Receivables Entity and/or any notes issued by any Receivables Entity to ~~execute~~ any ~~Security Document governed by~~ Receivables Seller in connection with any Permitted Receivables Facility, in any case, that have been pledged to secure the ~~laws~~ Obligations and/or (ii) disclaimers of interests on, and releases of security interests in, any Receivables and Permitted Receivables Facility Assets. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders (including the Swingline Lender and each Issuing Bank), and neither the Company nor any other Loan Party shall have rights as a third party beneficiary of any of such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf~~provisions. It is understood and agreed that the use of the term “agent” as used herein or in any other Loan Documents (or any similar term) ~~herein or in any other Loan Document~~ with reference to the Administrative Agent is not intended to connote any fiduciary ~~duty~~ or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market ~~custom~~ custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The ~~Person~~ bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such ~~Person~~ bank and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Company or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct ~~(such absence to be presumed unless otherwise~~ as determined by a final nonappealable judgment of a court of competent ~~jurisdiction by a final and nonappealable judgment)~~jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Company or a ~~Lender or an Issuing Bank~~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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan ~~Document or the occurrence of any Default~~Document, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ 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 IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability 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 of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the 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 (which shall not be unreasonably withheld or delayed)~~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 thirty (30) days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in 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 and under the other Loan Documents~~hereunder. The fees payable by ~~Holdings and the~~ any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~by Holdings, the~~ between such Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender acknowledges that the extensions of credit made hereunder are commercial loans and ~~each Issuing Bank~~ letters of credit and not investments in a business enterprise or securities. Each Lender further 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, the Arrangers~~ Agent 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. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ thereunder and in deciding whether or the ~~Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant~~ extent to which it ~~shall become~~ will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a Syndication Agent or 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 ~~acknowledged receipt~~ 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 Documentation Agents, 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 ~~consented~~ interest on any Loan after the date such principal or interest has become due and payable pursuant to ~~and approved,~~ the terms of this ~~Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~Agreement. In its capacity, the Administrative Agent or is a “representative” of the ~~Lenders on~~ Secured Parties within the ~~Effective Date or~~ meaning of the ~~Funding Date~~term “secured party” as defined in the New York Uniform Commercial Code. ~~Except with respect~~ Each Lender authorizes the Administrative Agent to enter into each of the ~~exercise of setoff rights of any~~ Collateral Documents to which it is a party and to take all action contemplated by such documents. Each 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,~~ agrees that no Secured Party (other than the Administrative Agent) shall have ~~any~~ the right individually to seek to realize upon the security granted by any ~~of the~~ Collateral ~~or to enforce any Guarantee of the Obligations~~Document, it being understood and agreed that ~~all powers,~~ such rights and remedies ~~under the Loan Documents~~ 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 ~~in accordance with the terms thereof. In the event of~~ any Loan Documents necessary or appropriate to grant and perfect a ~~foreclosure by the Administrative Agent~~ Lien 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~~ in favor 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~~ Parties. 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) as described in Section 9.02(d); (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or ~~other disposition. In furtherance~~ 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 ~~foregoing~~ Lenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Company to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent 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 ~~limitation thereof~~any manner discharge, ~~no Hedging Agreement~~ affect or impair the ~~obligations under which constitute~~ Secured ~~Hedging~~ Obligations ~~will create~~ or any Liens upon (or ~~be deemed~~ obligations of the Company or any Subsidiary in respect of) all interests retained by the Company or any Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to ~~create) in favor~~ constitute part of ~~any Secured Party that is a party thereto any rights~~ the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the ~~management or release~~ Administrative Agent. In case of the pendency of any ~~Collateral or of the obligations of~~ proceeding with respect to any Loan Party under ~~this Agreement~~ any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Company or any other ~~Loan Document except as expressly provided~~ Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (a) to file and prove a claim for the ~~Collateral Agreement. By accepting the benefits~~ whole amount of the ~~Collateral~~principal and interest owing and unpaid in respect of the Loans, ~~each~~ LC Exposure and all other Secured ~~Party~~ Obligations that ~~is a party~~ are owing and unpaid and to ~~any~~ file such ~~Hedging Agreement shall~~ other documents as may be ~~deemed~~ necessary or advisable in order to have ~~appointed~~ the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim under Sections 2.12, 2.13, 2.15, 2.16, 2.17 and 9.03) allowed in such judicial proceeding; and (b) collect and receive any monies or other property payable or deliverable on any such claims and to ~~serve~~ distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Issuing Banks or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as ~~administrative agent and collateral agent~~ the Administrative Agent, under the Loan Documents (including under Section 9.03). For greater certainty and ~~agreed~~ without limiting the powers of the Administrative Agent, each Borrower, on its behalf and on behalf of its Subsidiaries, and each Lender, on its behalf and on the behalf of its affiliated Secured Parties, hereby irrevocably constitute the Administrative Agent as the holder of an irrevocable power of attorney (fondé de pouvoir within the meaning of Article 2692 of the Civil Code of Québec) in order to ~~be bound~~ hold hypothecs and security granted by each Borrower or any Subsidiary on property pursuant to the ~~Loan Documents as a Secure~~laws of the Province of Quebec to secure obligations of any Borrower or any Subsidiary under any bond, debenture or similar title of indebtedness issued by any Borro

Appears in 3 contracts

Sources: Credit Agreement (LKQ Corp), Credit Agreement (LKQ Corp), Amendment and Restatement Agreement (LKQ Corp)

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ each assignee of any Lender hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (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 ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (~~Company or any ~~similar term) herein~~ other Borrower pursuant to this Agreement or ~~in any~~ the other Loan ~~Document with reference~~ Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent is in its individual capacity and not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ any of the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower, any Subsidiary or any other Affiliate of~~ any of the ~~foregoing~~ Borrowers or any of their Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ a Borrower (in which case the ~~Borrower, a Lender or an Issuing Bank~~Administrative Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative 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~~ agents, which may include any of its branches or affiliates, appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (~~which shall~~ not to be unreasonably ~~withheld~~ withheld, conditioned or ~~delayed~~delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. In addition, if the Administrative Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and the Administrative Agent, to remove the Administrative Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld, conditioned or delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. If (a) no successor to a retiring 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 notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such ~~bank~~bank or (b) no successor to a removed Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days following the issuance of a notice of removal, the removal shall become effective on such 30th day and on such date the Required Lenders shall succeed as Administrative Agent to such removed Administrative 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 or removed Administrative Agent, as the case may be, and ~~the~~ such retiring or removed Administrative Agent shall be discharged from its duties and obligations ~~hereunder and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity~~ or removal, as ~~such~~the case may be, hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 10.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, as the case may be. 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 and in respect of the matters referred to in the proviso under clause~~ Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of the Administrative Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ None of the Lenders identified on the facing page or signature ~~page to~~ pages of this Agreement ~~on the Effective Date and funding its Loans on the Funding Date~~or elsewhere herein as a “syndication agent” or “documentation agent” shall have any right, power, obligation, liability, responsibility or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, duty under this Agreement ~~and each~~ other ~~Loan Document and each other document required~~ than those applicable to ~~be delivered to, or be approved by or satisfactory to,~~ all Lenders as such. Each Lender hereby agrees that (x) if the Administrative Agent ~~or the Lenders on the Effective Date or the Funding Date. Except with respect to the exercise of setoff rights of any~~ notifies such 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 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~~ has determined in ~~accordance with the terms thereof. In the event of a foreclosure~~ its sole discretion that any funds received by ~~the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition,~~ such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender ~~may be~~ (whether or not known to such Lender), and demands the ~~purchaser~~ return of such Payment (or ~~licensor~~ a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or ~~all~~ portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such ~~Collateral~~ Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at ~~any such sale or other disposition~~the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, ~~as agent~~ any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for ~~and representative~~ the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the ~~Secured Parties (but not~~ Administrative Agent to any Lender under this paragraph or ~~Lenders in its or their respective individual capacities unless~~ the ~~Required Lenders shall otherwise agree in writing)~~ following paragraph shall be ~~entitled~~conclusive, absent manifest error. Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. Each Borrower hereby agrees that in the event an erroneous Payment (or portion thereof) is not recovered from any Lender that has received such erroneous Payment (or portion thereof) for any reason, (x) the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by any Borrower, except, in each case, to the extent such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds received by the Administrative Agent from any Borrower for the purpose of ~~bidding and making settlement~~ satisfying Obligations. Each party’s obligations under the preceding three paragraphs shall survive the resignation or ~~payment~~ replacement 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~~ or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the ~~Secured Parties at such sale~~ Commitments or ~~other disposition~~the repayment, satisfaction or discharge of all Obligations under any Loan Document. ~~In furtherance~~ Each Lender (x) represents and warrants, as of the ~~foregoing~~ 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 Company or any Subsidiary, that at least one of the following is and will be true: (i) such Lender is not ~~in limitation thereof, no Hedging Agreement~~ using “plan assets” (within the ~~obligations under which constitute Secured Hedging Obligations will create (~~meaning of Section 3(42) of ERISA or ~~be deemed to create~~otherwise) ~~in favor~~ of ~~any Secured Party that is a party thereto any rights~~ one or more Benefit Plans in connection with the ~~management~~ Loans or ~~release of any Collateral~~ the Commitments, (ii) the transaction exemption set forth in one or ~~of the obligations of any Loan Party under this Agreement or any other Loan Document except~~ more PTEs, such as ~~expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral~~PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), ~~each Secured Party that is~~ PTE 95-60 (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 Secureclass exem

Appears in 3 contracts

Sources: 364 Day Credit Agreement (Automatic Data Processing Inc), Credit Agreement (Automatic Data Processing Inc), 364 Day Credit Agreement (Automatic Data Processing Inc)

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ each assignee of any Lender hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (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 ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (~~Company or any ~~similar term) herein~~ other Borrower pursuant to this Agreement or ~~in any~~ the other Loan ~~Document with reference~~ Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent is in its individual capacity and not ~~intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used~~ as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the~~ Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ any of the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower, any Subsidiary or any other Affiliate of~~ any of the ~~foregoing~~ Borrowers or any of their Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ a Borrower (in which case the ~~Borrower, a Lender or an Issuing Bank~~Administrative Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (~~which shall~~ not to be unreasonably withheld and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. In addition, if the Administrative Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or ~~delayed~~similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and such Administrative Agent, to remove such Administrative Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. If (a) no successor to a retiring 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 notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such ~~bank~~bank or (b) no successor to a removed Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days following the issuance of a notice of removal, the removal shall become effective on such 30th day and on such date the Required Lenders shall succeed as Administrative Agent to such removed Administrative 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 or removed Administrative Agent, as the case may be, and ~~the~~ such retiring or removed Administrative Agent shall be discharged from its duties and obligations ~~hereunder and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity~~ or removal, as ~~such~~the case may be, hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 10.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, as the case may be. 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 and in respect of the matters referred to in the proviso under clause~~ Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of the Administrative Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ None of the Lenders identified on the facing page or signature ~~page to~~ pages of this Agreement ~~on the Effective Date and funding its Loans on the Funding Date~~or elsewhere herein as a “syndication agent”, “documentation agent” or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 “managing agent” shall have any ~~right individually to realize upon any of the Collateral~~ right, power, obligation, liability, responsibility 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 duty under this Agreement ~~or any~~ other ~~Loan Document except~~ than those applicable to all Lenders as expressly provided in the Collateral Agreement. 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 Securesuch.

Appears in 3 contracts

Sources: Credit Agreement (Automatic Data Processing Inc), 364 Day Credit Agreement (Automatic Data Processing Inc), 364 Day Credit Agreement (Automatic Data Processing Inc)

The Administrative Agent. Each of the Lenders and the Issuing ~~Banks~~ Lender hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition, to~~ The Administrative Agent shall also act as the ~~extent required~~ “collateral agent” under the ~~laws of any jurisdiction other than the United States of America~~Loan Documents, and each of the Lenders (in its capacities as a Lender) hereby irrevocably appoints and ~~the Issuing Banks hereby grants to~~ authorizes the Administrative Agent to act as the agent of (and to hold any ~~required powers of attorney to execute any Security Document governed~~ security interest created by the ~~laws~~ Security Documents for and on behalf of or on trust for) such ~~jurisdiction~~ Lender for purposes of acquiring, holding and enforcing any and all Liens on ~~such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use~~ Collateral granted by any of the ~~term~~ Obligors to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” (or and any ~~similar term) herein or in any other Loan Document with reference to~~ co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent ~~is not intended~~ pursuant to ~~connote~~ this Article for purposes of holding or enforcing any ~~fiduciary duty or other implied~~ Lien on the Collateral (or ~~express~~any portion thereof) ~~obligations arising~~ granted under ~~agency doctrine~~ 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 including Section 10.03, 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. Without limiting any other provision of this Article, each Lender hereby authorizes the Administrative Agent to enter into (and/or agree to any amendments to) from time to time (i) any Security Documents and (ii) intercreditor (including subordination) arrangements on behalf of the Lenders in respect of any ~~applicable law. Instead~~Other Debt or Permitted Additional Indebtedness to the extent permitted or contemplated hereunder, ~~such term is used~~ in each case as ~~a matter of market custom~~ the Administrative Agent shall determine to be appropriate and ~~is intended to create or reflect only an administrative relationship between contracting parties~~consistent with the provisions hereof. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrower~~an Obligor), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing ~~Banks~~ Lender and the Borrower. Additionally, if the Lender then acting as the Administrative Agent is a Defaulting Lender by virtue of clause (e) of the definition thereof, then the Administrative Agent may be removed by the Required Lenders and the Borrower (or only the Required Lenders, if a Default shall exist) upon 30 days’ written notice thereof to the Administrative Agent and the Lenders. Upon ~~receipt of~~ any such ~~notice of resignation~~resignation or removal, the Required Lenders and the Borrower shall have the right, ~~with the consent of the Borrower (which~~ so long as no Default shall ~~not be unreasonably withheld or delayed)~~exist, to appoint a ~~successor~~successor from among the Lenders. If In the case of resignation by the Administrative Agent, if no successor shall have been so appointed by the Required Lenders and the Borrower and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing ~~Banks~~Lender, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with a minimum capital and surplus of $500,000,000 and with an office in New York, New York, or an Affiliate of any such bank. In the case of removal of the Administrative Agent as provided above, if no successor shall have been so appointed by the Required Lenders and the Borrower (or by the Required Lenders, if a Default shall exist) and shall have accepted such appointment within 30 days after the Administrative Agent receives notice of removal, then the Borrower, so long as no Default shall exist, may, on behalf of the Lenders and the Issuing Lender, appoint a successor Administrative Agent which shall be a bank with a minimum capital and surplus of $500,000,000 and with an office in 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 and under the other Loan Documents~~hereunder. 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~or removal hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Except as otherwise provided in Section 10.02(b) with respect to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toAgreement, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or the Lenders on the Effective Date or the Funding Date. Except with respect to the 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 waiver under any of the ~~Collateral~~ Loan Documents, provided that, without the prior consent of each Lender, the Administrative Agent shall not (except as provided herein or ~~to enforce any Guarantee~~ in the Security Documents) release all or substantially all of the ~~Obligations, it being understood and agreed that all powers, rights and remedies~~ collateral or terminate any Lien with respect thereto under the ~~Loan~~ Security Agreement, except that no such consent shall be required, and the Administrative Agent is hereby authorized, to release any Lien covering property that is the subject of either a Disposition of property permitted hereunder or a Disposition to which the Required Lenders have consented. Notwithstanding anything to the contrary contained herein, the Security Documents executed by the Obligors in connection with this Agreement may be ~~exercised solely~~ in a form reasonably determined by the Administrative Agent ~~on behalf of the Secured Parties in accordance~~ and may be amended and waived with the ~~terms thereof. In the event~~ consent of ~~a foreclosure by~~ the Administrative Agent ~~on any~~ at the request of the ~~Collateral pursuant~~ Borrower without the need to ~~a public or private sale or other disposition,~~ obtain the ~~Administrative Agent or~~ consent of any Lender ~~may be the purchaser~~ if such amendment or ~~licensor~~ waiver is delivered in order (i) to comply with applicable local law, rule or regulation or advice of ~~any~~ local counsel, (ii) to cure ambiguities, defects or ~~all of such Collateral at~~ manifest errors, (iii) to cause any such ~~sale or other disposition,~~ Security Documents to be consistent with this Agreement 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan ~~Document except as expressly provided in~~ Documents and/or (iv) to give effect to the ~~Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party~~ changes 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~~ Security Document required by ~~the Loan Documents as a Secure~~any Intercreditor Agreement.

Appears in 3 contracts

Sources: Credit Agreement (Sinclair Broadcast Group Inc), Incremental Loan Amendment (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc)

The Administrative Agent. ~~Each~~ In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent, on behalf of the Lenders and each Issuing Bank. Each of the Lenders, each assignee of any such Lender and each Issuing ~~Banks~~ Bank hereby irrevocably ~~appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee or such Issuing Bank and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders and each Issuing Bank, without hereby limiting any implied authority, (a) to ~~the extent required under the laws of any jurisdiction other than the United States of America, each~~ receive on behalf of the Lenders and the Issuing Banks ~~hereby grants~~ all payments of principal of and interest on the Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with its role as the Administrative Agent hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not ~~intended~~ an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to ~~connote~~ any ~~fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead~~Loans made by it hereunder, ~~such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as~~ the Administrative Agent ~~hereunder~~ in its individual capacity and not as Administrative Agent shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall ~~not~~ have ~~any~~ no duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Company or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or wilful ~~misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Company or a ~~Lender or an Issuing Bank~~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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability 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 of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the revolving credit ~~facilities~~ facility provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the 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 (which shall not be unreasonably withheld or delayed)~~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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in 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 and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure.

Appears in 3 contracts

Sources: Revolving Credit Facility Agreement (Albany International Corp /De/), Revolving Credit Facility Agreement (Albany International Corp /De/), Revolving Credit Facility Agreement (Albany International Corp /De/)

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ each assignee of any Lender hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (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 ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (~~Company or any ~~similar term) herein~~ other Borrower pursuant to this Agreement or ~~in any~~ the other Loan ~~Document with reference~~ Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent is in its individual capacity and not ~~intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used~~ as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the~~ Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ any of the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower, any Subsidiary or any other Affiliate of~~ any of the ~~foregoing~~ Borrowers or any of their Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ a Borrower (in which case the ~~Borrower, a Lender or an Issuing Bank~~Administrative Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower (which shall not be unreasonably withheld or delayed)~~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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in 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 and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause~~ Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of the Administrative Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ None of the Lenders identified on the facing page or signature ~~page to~~ pages of this Agreement ~~on the Effective Date and funding its Loans on the Funding Date,~~ or ~~delivering its signature page to an Assignment and Assumption~~ elsewhere herein as a “co-syndication agent” or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 “documentation agent” shall have any ~~right individually to realize upon any of the Collateral~~ right, power, obligation, liability, responsibility 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 duty under this Agreement ~~or any~~ other ~~Loan Document except~~ than those applicable to all Lenders as expressly provided in the Collateral Agreement. 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 Securesuch.

Appears in 3 contracts

Sources: 364 Day Credit Agreement (Automatic Data Processing Inc), 364 Day Credit Agreement (Automatic Data Processing Inc), 364 Day Credit Agreement (Automatic Data Processing Inc)

The Administrative Agent. Each of the Lenders and the Issuing ~~Banks~~ Lender hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition, to~~ The Administrative Agent shall also act as the ~~extent required~~ “collateral agent” under the ~~laws of any jurisdiction other than the United States of America~~Loan Documents, and each of the Lenders (in its capacities as a Lender) hereby irrevocably appoints and ~~the Issuing Banks hereby grants to~~ authorizes the Administrative Agent to act as the agent of (and to hold any ~~required powers of attorney to execute any Security Document governed~~ security interest created by the ~~laws~~ Security Documents for and on behalf of or on trust for) such ~~jurisdiction~~ Lender for purposes of acquiring, holding and enforcing any and all Liens on ~~such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use~~ Collateral granted by any of the ~~term~~ Obligors to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” (or and any ~~similar term) herein or in any other Loan Document with reference to~~ co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent ~~is not intended~~ pursuant to ~~connote~~ this Article for purposes of holding or enforcing any ~~fiduciary duty or other implied~~ Lien on the Collateral (or ~~express~~any portion thereof) ~~obligations arising~~ granted under ~~agency doctrine~~ 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 including Section 10.03, 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. Without limiting any other provision of this Article, each Lender hereby authorizes the Administrative Agent to enter into (and/or agree to any amendments to) from time to time (i) any Security Documents and (ii) intercreditor (including subordination) arrangements on behalf of the Lenders in respect of any ~~applicable law. Instead~~Other Debt to the extent permitted or contemplated hereunder, ~~such term is used~~ in each case as ~~a matter of market custom~~ the Administrative Agent shall determine to be appropriate and ~~is intended to create or reflect only an administrative relationship between contracting parties~~consistent with the provisions hereof. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrower~~an Obligor), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing ~~Banks~~ Lender 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 ~~(which~~ so long as no Default shall ~~not be unreasonably withheld or delayed)~~exist, 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing ~~Banks~~Lender, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with a minimum capital and surplus of $500,000,000 and with an office in 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 and under the other Loan Documents~~hereunder. 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Except as otherwise provided in Section 10.02(b) with respect to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toAgreement, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or the Lenders on the Effective Date or the Funding Date. Except with respect to the 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 waiver under any of the ~~Collateral~~ Loan Documents, provided that, without the prior consent of each Lender, the Administrative Agent shall not (except as provided herein or ~~to enforce any Guarantee~~ in the Security Documents) release all or substantially all of the ~~Obligations, it being understood and agreed that all powers, rights and remedies~~ collateral or terminate any Lien with respect thereto under the ~~Loan~~ Security Agreement, except that no such consent shall be required, and the Administrative Agent is hereby authorized, to release any Lien covering property that is the subject of either a Disposition of property permitted hereunder or a Disposition to which the Required Lenders have consented. Notwithstanding anything to the contrary contained herein, the Security Documents executed by the Obligors in connection with this Agreement may be ~~exercised solely~~ in a form reasonably determined by the Administrative Agent ~~on behalf of the Secured Parties in accordance~~ and may be amended and waived with the ~~terms thereof. In the event~~ consent of ~~a foreclosure by~~ the Administrative Agent ~~on any~~ at the request of the ~~Collateral pursuant~~ Borrower without the need to ~~a public or private sale or other disposition,~~ obtain the ~~Administrative Agent or~~ consent of any Lender ~~may be the purchaser~~ if such amendment or ~~licensor~~ waiver is delivered in order (i) to comply with applicable local law, rule or regulation or advice of ~~any~~ local counsel, (ii) to cure ambiguities, defects or ~~all of such Collateral at~~ manifest errors, (iii) to cause any such ~~sale or other disposition,~~ Security Documents to be consistent with this Agreement 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan ~~Document except as expressly provided in~~ Documents and/or (iv) to give effect to the ~~Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party~~ changes 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~~ Security Document required by ~~the Loan Documents as a Secure~~any Intercreditor Agreement.

Appears in 3 contracts

Sources: Credit Agreement (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc)

The Administrative Agent. (a) Each of the Lenders and the Issuing Banks hereby irrevocably appoints ~~the entity named~~ Bank of America as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors to serve as administrative~~ agent and ~~collateral agent under the Loan Documents and~~ authorizes ~~the Administrative Agent~~ Bank of America to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of hereof and the other 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ irrevocably appoints Bank of America as its collateral agent and authorizes Bank of America to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative Agent any required powers of attorney to execute any Security Document governed~~ collateral agent by the ~~laws~~ terms hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the collateral agent, the Lenders and the Issuing Bank, and the Borrower shall have no rights as a third party beneficiary of any of such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent”~~ provisions, except as expressly set forth in subparagraph (~~or any similar term~~f) ~~herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied~~ below. (~~or express~~b) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. 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~~ the term “Lender” or “Lenders” shall, 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~~, own securities of~~, 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 Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks.~~ Lenders. (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~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 ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary,~~ expressly provided for herein or as by the ~~Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the~~ other Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, ; and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided ~~in the Loan Documents~~herein) or in the absence of its own bad faith, gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice describing such Default thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the Borrower, a Lender or an the 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document~~ therein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. . (d) The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the ~~issuance, extension, renewal or increase~~ issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an the Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or ~~such~~ the Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or ~~such~~ the 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. . (e) The Administrative Agent may perform any of 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 of and all ~~their~~ of its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (f) The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may ~~resign~~ at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall~~ give notice of its ~~intent to resign~~ resignation to the Lenders, the Issuing ~~Banks~~ Bank and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower and (unless an Event of Default under clause (a) or (b), (h) or (i) of Article VII shall have occurred and be continuing) with the consent of the Borrower (which consent of the Borrower shall not be unreasonably withheld or delayed), 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 thirty (30) days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent ~~may,~~ may on behalf of the Lenders and the Issuing ~~Banks~~Bank, appoint a successor Administrative ~~Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon~~ Agent meeting the ~~acceptance of its appointment as~~ qualifications set forth above; provided that if the Administrative Agent ~~hereunder by a successor~~shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such ~~successor~~ resignation shall ~~succeed to~~ nonetheless become effective in accordance with such notice and ~~become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and~~ (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the Issuing Bank under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) 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 and the Issuing Bank directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). 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 ~~by Holdings,~~ between the Borrower and such successor. ~~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~~ After the retiring Administrative ~~Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its~~ Agent’s 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 from its capacity as such, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 the retiring Administrative Agent was acting as Administrative Agent. Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as Issuing Bank and ~~in respect~~ Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition of Defaulting Lender, 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 the Borrower in consultation with the Lenders shall, unless an Event of Default shall have occurred and be continuing, in which case the Required Lenders in consultation with the Borrower shall, 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, without the consent of the Borrower (not to be unreasonably withheld), the Required Lenders shall not be permitted to select a successor that is not a U.S. financial institution described in Treasury Regulation Section 1.1441-1(b)(2)(ii) or a U.S. branch of a foreign bank described in Treasury Regulation Section 1.1441-1(b)(2)(iv)(A). If no such successor shall have been appointed by the Borrower or the Required Lenders, as applicable, and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with notice on the Removal Effective Date. (g) Each Lender and ~~each~~ the Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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~~ the Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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,~~ . (h) To the extent required by ~~delivering its signature page to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or~~ any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toapplicable Laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the ~~Lenders on~~ provisions of Section 2.16, each Lender shall indemnify and hold harmless the ~~Effective Date~~ 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 ~~Funding Date~~Administrative Agent by the 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, 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). ~~Except with respect~~ A certificate as to the ~~exercise~~ amount of ~~setoff rights of~~ such payment or liability delivered to 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 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~~shall be conclusive absent manifest error. ~~In the event of a foreclosure by~~ Each Lender hereby authorizes 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 set off and apply any ~~of the Loan Document Obligations as a credit on account of the purchase price for~~ and all amounts at any ~~collateral payable by the Administrative Agent on behalf of the Secured Parties at~~ time owing to such sale or other disposition. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 Lender under this Agreement or any other Loan Document ~~except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party to~~ against any ~~such Hedging Agreement shall be deemed to have appointed~~ amount due the Administrative Agent ~~to serve as administrative agent~~ under this clause (h). The agreements in this clause (h) 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 Commitments and ~~collateral agent under~~ the ~~Loan Documents~~ repayment, satisfaction or discharge of all other Obligations. For the avoidance of doubt, a “Lender” shall, for purposes of this clause (h), include any Swingline Lender and ~~agreed to be bound by the Loan Documents as a Secure~~any Issuing Bank.

Appears in 2 contracts

Sources: Restatement Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)

The Administrative Agent. Each of the ~~Lenders~~ Lenders, the Swingline Lender and the Issuing Banks hereby irrevocably appoints ~~the entity named~~ CIT (or any successor appointed pursuant hereto) as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors to serve as administrative~~ agent ~~and collateral agent under the Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition, to the extent required under the laws~~ The provisions of ~~any jurisdiction~~ this Article 8 (other than the ~~United States~~ fifteenth, sixteenth and nineteenth paragraphs hereof) are solely for the benefit of ~~America~~the Administrative Agent, ~~each of~~ the Swingline Lender, the Lenders and the Issuing ~~Banks hereby grants~~ Banks, and the Borrowers shall not have rights as a third party beneficiary of any such provision. Each Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and each Issuing Bank shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Article 8 with respect to any ~~required powers of attorney to execute any Security Document governed~~ acts taken or omissions suffered by ~~the laws of such jurisdiction on such Lender’s or~~ such Issuing ~~Bank’s behalf. It is understood~~ Bank in connection with Letters of Credit issued by it or proposed to be issued by it and ~~agreed that~~ the ~~use~~ applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “~~agent~~Administrative Agent” as used in this Article 8 included such Issuing Bank with respect to such acts or omissions, and (~~or any similar term~~ii) as additionally provided herein ~~or in any other Loan Document~~ with ~~reference~~ respect to the ~~Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law~~Issuing Bank. ~~Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The~~ Any 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~~Agent and the term “Lender” or “Lenders” shall, ~~and~~ unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder~~ hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and ~~without~~ acknowledge that the Administrative Agent shall not be under any ~~duty~~ obligation to ~~account therefor~~ provide such information to ~~the Lenders or the Issuing Banks~~them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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~~continuing and without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law and instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law~~laws, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower,~~ any ~~Subsidiary~~ Loan Party or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct ~~(such absence to be presumed unless otherwise~~ as determined by the final judgment of a court of competent ~~jurisdiction by a final and nonappealable 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 ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower, a Lender~~ Borrower Representative or ~~an Issuing Bank~~any Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire ~~into~~ into, and each Loan Party and Secured Party hereby waives and agrees not to assert any right, claim or cause of action based on, except to the extent of liabilities resulting primarily from Administrative Agent’s own gross negligence or willful misconduct in connection with its duties expressly set forth herein: (i) any statement, warranty or representation made in or in connection with ~~this Agreement or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default or Event of Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document or~~ document, (v) the creation, perfection or priority of Liens on the Collateral or the existence, value, sufficiency, state or condition of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere in ~~this Agreement or~~ any ~~other~~ Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent~~ Agent, (vii) the properties, books or ~~satisfaction~~ records of any ~~condition that expressly refers~~ Loan Party or any Affiliate thereof and (viii) liability with respect to or arising out of any assignment or participation of the ~~matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for~~Obligations, or ~~be responsible for~~ disclosure of any ~~loss~~information, ~~cost or expense suffered by the Borrower~~ to any Secured Party or any ~~Lender as a result of~~Security Party’s representatives, ~~any determination~~ Approved Funds or Affiliates. In addition to and not in limitation of the ~~Revolving Exposure or the component amounts thereof or~~ foregoing, it is understood and agreed that in respect of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 LoanCollateral, or ~~the issuance~~any act, ~~extension~~omission, ~~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~~event related thereto, the Administrative Agent may ~~presume~~ act in any manner it may deem appropriate, in its sole discretion, given the Administrative Agent’s own interest in the Collateral in its capacity as one of the Secured Parties and that ~~such condition is satisfactory to such Lender or such Issuing Bank unless~~ the Administrative Agent shall have ~~received notice~~ no other duty or liability whatsoever to any Secured Party as to any of the foregoing, including the preparation, form or filing of any UCC financing statement (or any similar filing in any applicable jurisdiction), amendment or continuation or of any other type of document related to the ~~contrary from such~~ creation, perfection, continuation or priority of any Lien as to any property of the Loan Parties. Each Lender ~~or such 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)~~agrees that, ~~independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance~~ except with the ~~advice~~ written consent of the Administrative Agent, it will not take any ~~such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers~~ enforcement action hereunder or under any other Loan ~~Document by~~ Document, accelerate the Obligations under any Loan Document, or ~~through~~ exercise any ~~one~~ right that it might otherwise have under applicable law or ~~more sub-agents appointed by the Administrative Agent. The Administrative Agent and~~ otherwise to credit bid at foreclosure sales, UCC sales, any such sub-agent may perform any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties sale under Section 363 of the ~~Administrative Agent and any such sub-agent and shall apply to their respective activities in connection with the syndication~~ Bankruptcy Code or other similar Dispositions of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successorCollateral. Notwithstanding the foregoing, ~~in the event no successor Administrative Agent shall have been so appointed and shall have accepted~~ however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such ~~appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign~~action, ~~the retiring Administrative Agent may give notice~~ bar enforcement of the ~~effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of~~ Obligations held by 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 DocumentLender, including ~~any action required to maintain~~ the ~~perfection~~ filing 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 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 proofs of claim in an insolvency proceeding, 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 a case 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 SecureBankruptcy Code.

Appears in 2 contracts

Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)

The Administrative Agent. (a) Each of the Lenders and the Issuing Banks hereby irrevocably appoints ~~the entity named~~ Bank of America as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors to serve as administrative~~ agent and ~~collateral agent under the Loan Documents and~~ authorizes ~~the Administrative Agent~~ Bank of America to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of hereof and the other 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ irrevocably appoints Bank of America as its collateral agent and authorizes Bank of America to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative Agent any required powers of attorney to execute any Security Document governed~~ collateral agent by the ~~laws~~ terms hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the collateral agent, the Lenders and the Issuing Bank, and the Borrower shall have no rights as a third party beneficiary of any of such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent”~~ provisions, except as expressly set forth in subparagraph (~~or any similar term~~f) ~~herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied~~ below. (~~or express~~b) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. 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~~ the term “Lender” or “Lenders” shall, 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~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings, the~~ a Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks.~~ Lenders. (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~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 ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary,~~ expressly provided for herein or as by the ~~Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the~~ other Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, ; and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided ~~in the Loan Documents~~herein) or in the absence of its own bad faith, gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice describing such Default thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower~~Company, a Lender or an the 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document~~ therein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. . (d) The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the ~~issuance, extension, renewal or increase~~ issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an the Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or ~~such~~ the Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or ~~such~~ the 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. . (e) The Administrative Agent may perform any of 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 of and all ~~their~~ of its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (f) The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may ~~resign~~ at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall~~ give notice of its ~~intent to resign~~ resignation to the Lenders, the Issuing ~~Banks~~ Bank and the ~~Borrower~~Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower and (unless an Event of Default under clause (a) or (b), (h) or (i) of Article VII shall have occurred and be continuing) with the consent of the ~~Borrower~~ Company (which consent of the Company shall not be unreasonably withheld or delayed), 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 and shall not be a Defaulting Lender. If no such 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 ~~intent to resign~~resignation, then the retiring Administrative Agent ~~may,~~ may on behalf of the Lenders and the Issuing ~~Banks~~Bank, appoint a successor Administrative ~~Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon~~ Agent meeting the ~~acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all~~ qualifications set forth above; provided that if the ~~rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring~~ Administrative Agent shall ~~be discharged from its duties and obligations hereunder and under~~ notify the ~~other Loan Documents. The fees payable by Holdings~~ Company and the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by Holdings, the Borrower and such successor. Notwithstanding the foregoing, in the event Lenders that no ~~successor Administrative Agent shall have been so appointed and shall have~~ qualifying Person has accepted such ~~appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign~~appointment, ~~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~~ then such resignation ~~stated~~ shall nonetheless become effective in accordance with such ~~notice,~~ notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan ~~Documents; provided that, solely for purposes~~ Documents (except that in the case of ~~maintaining~~ any collateral security ~~interest granted to~~ held by the Administrative Agent on behalf of the Lenders or the Issuing Bank under any ~~Security Document for the benefit~~ of the ~~Secured Parties~~Loan Documents, 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~~ collateral security until such time as a successor Administrative Agent is ~~appointed~~ appointed) and ~~accepts such appointment in accordance with this paragraph~~ (~~it being understood~~ 2) all payments, communications and ~~agreed that~~ determinations provided to be made by, to or through the ~~retiring~~ Administrative Agent shall ~~have no duty~~ instead be made by or ~~obligation~~ to ~~take any further action under any Security Document~~each Lender and the Issuing Bank directly, ~~including any action required to maintain the perfection of any~~ until such ~~security interest), and (b)~~ time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent~~; provided that (i) all payments required to be made hereunder or under any other Loan Document to~~ , and the ~~Administrative Agent for the account of any Person other than the~~ retiring Administrative Agent shall be ~~made directly~~ discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Company to ~~such Person and (ii) all notices and other communications required or contemplated to be given or made to the~~ a successor Administrative Agent shall ~~also directly~~ be ~~given or made~~ the same as those payable to ~~each Lender~~ its predecessor unless otherwise agreed between the Borrower and ~~each Issuing Bank~~such successor. ~~Following~~ After the ~~effectiveness of the~~ retiring Administrative Agent’s resignation ~~from its capacity as such~~hereunder and under the other Loan Documents, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 the retiring Administrative Agent was acting as Administrative Agent. Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as Issuing Bank and ~~in respect~~ Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition of “Defaulting Lender,” 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 the Company in consultation with the Lenders shall, unless an Event of Default shall have occurred and be continuing, in which case the Required Lenders in consultation with the Company shall, 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 and shall not be a Defaulting Lender; provided that, without the consent of the Borrower (not to be unreasonably withheld), the Required Lenders shall not be permitted to select a successor that is not a U.S. financial institution described in Treasury Regulation Section 1.1441-1(b)(2)(ii) or a U.S. branch of a foreign bank described in Treasury Regulation Section 1.1441-1(b)(2)(iv)(A). If no such successor shall have been appointed by the Borrower or the Required Lenders, as applicable, and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with notice on the Removal Effective Date. (g) Each Lender and ~~each~~ the Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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~~ the Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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,~~ . (h) To the extent required by ~~delivering its signature page to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or~~ any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toapplicable Laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the ~~Lenders on~~ provisions of Section 2.16, each Lender shall severally indemnify and hold harmless the ~~Effective Date~~ 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 ~~Funding Date~~Administrative Agent by the 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, 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). ~~Except with respect~~ A certificate as to the ~~exercise~~ amount of ~~setoff rights of~~ such payment or liability delivered to 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 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~~shall be conclusive absent manifest error. ~~In the event of a foreclosure by~~ Each Lender hereby authorizes 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 set off and apply any ~~of the Loan Document Obligations as a credit on account of the purchase price for~~ and all amounts at any ~~collateral payable by the Administrative Agent on behalf of the Secured Parties at~~ time owing to such sale or other disposition. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 Lender under this Agreement or any other Loan Document ~~except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party to~~ against any ~~such Hedging Agreement shall be deemed to have appointed~~ amount due the Administrative Agent ~~to serve as administrative agent~~ under this clause (h). The agreements in this clause (h) 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 Commitments and ~~collateral agent under~~ the ~~Loan Documents~~ repayment, satisfaction or discharge of all other Obligations. For the avoidance of doubt, a “Lender” shall, for purposes of this clause (h), include any Swingline Lender and ~~agreed to be bound by the Loan Documents as a Secure~~any Issuing Bank.

Appears in 2 contracts

Sources: Restatement Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)

The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~the Issuing Banks~~ each assignee of any Lender hereby irrevocably ~~appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrower with respect to clause (c) below, (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 ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s~~ Company pursuant to this Agreement or ~~such Issuing Bank’s behalf. It is understood and agreed that~~ the ~~use of the term “agent” (or any similar term) herein or in any~~ other Loan ~~Document with reference~~ Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent is in its individual capacity and not ~~intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used~~ as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the~~ Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any ~~Subsidiary~~ of its Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, ~~and shall not~~ or be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to it by a Borrower (in which case the Administrative Agent ~~by Holdings, the Borrower, a Lender or an Issuing Bank~~shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (~~which shall~~ not to be unreasonably withheld and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. In addition, if the Administrative Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or ~~delayed~~similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and the Administrative Agent, to remove the Administrative Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld and except during the continuance of an Event of Default, when no consent shall be required), to appoint a successor. If (a) no successor to a retiring 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 notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank, or (b) no successor to a removed Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days following the issuance of a notice of removal, the removal shall become effective on such 30th day and on such date the Required Lenders shall succeed as Administrative Agent to such removed Administrative 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 or removed Administrative Agent, as the case may be, and such retiring or removed Administrative Agent, as the ~~retiring Administrative Agent~~ case may be, shall be discharged from its duties and obligations ~~hereunder and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause~~ Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of the Administrative Agent, any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ None of the Lenders identified on the facing page or signature ~~page to~~ pages of this Agreement ~~on the Effective Date and funding its Loans on the Funding Date~~or elsewhere herein as a “lead arranger”, “bookrunner”, “syndication agent” or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 “documentation agent” shall have any ~~right individually to realize upon any of the Collateral~~ right, power, obligation, liability, responsibility 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 duty under this Agreement ~~or any~~ other ~~Loan Document except~~ than those applicable to all Lenders as expressly provided in the Collateral Agreement. 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 Securesuch.

Appears in 2 contracts

Sources: Bridge Credit Agreement (CDK Global Holdings, LLC), Bridge Credit Agreement (CDK Global Holdings, LLC)

The Administrative Agent. Each of the Lenders and ~~the~~ Issuing ~~Banks~~ Lenders hereby irrevocably appoints ~~the entity named~~ Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent ~~in the heading of this Agreement~~ hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof and thereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition,~~ Except with respect to the ~~extent required under the laws of any jurisdiction other than the United States of America, each~~ consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the ~~Issuing Banks hereby grants to the Administrative Agent~~ Borrowers shall not have rights as a third party beneficiary of any ~~required powers of attorney to execute any Security Document governed by the laws~~ of such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf~~provisions. It is understood and agreed that the use of the term “agent” ~~(or any similar term)~~ herein or in any other Loan ~~Document~~ Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary ~~duty~~ or other implied (or express) obligations arising under agency doctrine of any applicable ~~law~~Law. ~~Instead,~~ Instead such term is used as a matter of market ~~custom~~ custom, and is intended to create or reflect only an administrative relationship between contracting parties. 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~~Agent and the term “Lender” or “Lenders” shall, ~~and such~~ 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, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Borrowers or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks~~Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. 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 to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Sections 7.02 and 9.02); , provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law~~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 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Company or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided in ~~the Loan Documents~~Sections 7.02 and 9.02) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct ~~(such absence to be presumed unless otherwise~~ as determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings~~the Company, ~~the~~ another Borrower, a Lender or an Issuing ~~Bank, and the~~ Lender. 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document~~ therein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be have been made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. 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 any Issuing ~~Bank~~Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing ~~Bank~~ Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing ~~Bank~~ Lender prior to the making of such Loan or the ~~issuance~~ issuance, extension, renewal or increase of such Letter of Credit. 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 of and all its duties and exercise its rights and powers hereunder or and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ of its duties and exercise ~~their~~ its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non appealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing ~~Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (~~which shall~~ not to be 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 days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent ~~may~~may (but shall not be obligated to), on behalf of the Lenders and the Issuing ~~Banks~~Lenders, ~~appoint~~ appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring 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 and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative ~~Agent~~Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by ~~Holdings and~~ the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~by Holdings,~~ between the ~~Borrower~~ Company and such successor. ~~Notwithstanding~~ After 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 Agent’s 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 from its capacity as such, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 (i) it was acting as Administrative Agent and (ii) after such resignation 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 ~~matters referred~~ agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the ~~proviso under clause~~ appointment by the Company of a successor ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing ▇▇▇▇▇▇, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing ~~Bank~~ Lender acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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~~ Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any ~~of the~~ other their 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~~The Administrative Agent shall not be responsible or have any liability for, ~~by delivering its signature page~~ or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement on relating to Disqualified Institutions. Without limiting the ~~Effective Date and funding its Loans on~~ generality of the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toforegoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or ~~the Lenders on the Effective Date~~ inquire as to whether any Lender or ~~the Funding Date. Except~~ Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to ~~the exercise of setoff rights~~ or arising out of any ~~Lender in accordance with Section 9.08~~ assignment or ~~with respect~~ participation of Loans, or disclosure of confidential information, 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 Collateral or to enforce any Guarantee of the Obligations, it being understood and~~ Disqualified Institution. It is 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 dispositionSyndication Agent, 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,~~ Co-Documentation Agents and the ~~Administrative Agent~~Joint Lead Arrangers shall, in their capacities as ~~agent for and representative of the Secured Parties (but not any Lender~~ such, have no duties 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 responsibilities under this ~~Agreement or any other Loan Document except as expressly provided in the Collateral~~ Agreement. 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 Secure.

Appears in 2 contracts

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

The Administrative Agent. Each of the Lenders and the Issuing ~~Banks~~ Bank hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and~~ as its ~~successors to serve as administrative~~ agent ~~and collateral agent under the Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition, to~~ The Administrative Agent shall also act as the ~~extent required~~ “collateral agent” under the ~~laws of any jurisdiction other than the United States of America~~Loan Documents, and each of the Lenders (including in its capacities as party to a Swap Agreement and a provider of Banking Services) and the Issuing ~~Banks~~ Bank hereby ~~grants to~~ irrevocably appoints and authorizes the Administrative Agent ~~any required powers of attorney~~ to ~~execute any Security Document governed by~~ act as the ~~laws~~ agent of such ~~jurisdiction~~ Lender and the Issuing Bank for purposes of acquiring, holding and enforcing any and all Liens on ~~such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use~~ Collateral (other than FCC Licenses) granted by any of the ~~term~~ Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” ~~(or~~ and any ~~similar term) herein or in any other Loan Document with reference to~~ co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent ~~is not intended~~ pursuant to ~~connote~~ this Article VIII for purposes of holding or enforcing any ~~fiduciary duty~~ Lien on the Collateral (other than FCC Licenses), or ~~other implied~~ any portion thereof, granted under the Collateral Documents, (or ~~express~~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) ~~obligations arising under agency doctrine of any applicable law. Instead, such term is used~~ as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~if set forth in full herein with respect thereto. The ~~Person~~ bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such ~~Person~~ bank and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower,~~ any ~~Subsidiary~~ Loan Party or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan ~~Document or the occurrence of any Default~~Document, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the creation, perfection or priority of Liens on the Collateral (other than FCC Licenses) or the existence, value or sufficiency of the Collateral (other than FCC Licenses), or (vi) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing ~~Banks~~ Bank 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 (which shall not be unreasonably withheld or delayed)~~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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing ~~Banks~~Bank, appoint a successor Administrative ~~Agent,~~ Agent which shall be a commercial bank ~~with an office in New York, New York,~~ or an Affiliate of any such commercial 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 and under the other Loan Documents~~hereunder. 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender acknowledges and ~~each Issuing Bank acknowledges~~ agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not 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 that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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. Each Lender, by delivering its signature page~~ thereunder and in deciding whether or to ~~this Agreement on~~ the ~~Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant~~ extent to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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 will continue 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~~ lender or ~~other disposition. In furtherance of the foregoing~~ assign or otherwise transfer its rights, interests and ~~not in limitation thereof, no Hedging Agreement the~~ obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Securehereunder.

Appears in 2 contracts

Sources: Credit Agreement (Fisher Communications Inc), Credit Agreement (Fisher Communications Inc)

The Administrative Agent. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably appoints ~~the entity named~~ RBC (or any successor appointed pursuant hereto) as Administrative Agent ~~in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Any 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 the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings, the Borrower~~ any Loan Party or any ~~Subsidiary~~ subsidiary of any Loan Party or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder~~ hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and ~~without~~ acknowledge that the Administrative Agent shall not be under any ~~duty~~ obligation to ~~account therefor~~ provide such information to ~~the Lenders or the Issuing Banks~~them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is ~~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 to exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents ~~that~~ and which the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the relevant circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law~~Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Top Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as ~~shall be~~ is necessary, or as the Administrative Agent ~~shall believe~~ believes in good faith to shall be necessary, under the relevant circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise~~ willful misconduct, as determined by the final judgment of a court of competent ~~jurisdiction by a final and nonappealable 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 ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower, a Lender~~ Top Borrower or ~~an Issuing Bank~~any Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) the performance or observance of any ~~of the covenants~~covenant, ~~agreements~~ agreement or other ~~terms~~ term or ~~conditions~~ condition set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default or Event of Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document or~~ document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere in ~~this Agreement or~~ any ~~other~~ Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or ~~satisfaction~~ (vii) any property, book or record of any ~~condition that expressly refers to~~ Loan Party or any Affiliate thereof. Each Lender agrees that, except with the ~~matters described therein being acceptable or satisfactory to~~ written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable Requirements of Law or otherwise to credit bid at any foreclosure sale, UCC sale, any sale under Section 363 of the Bankruptcy Code or any other similar Disposition of Collateral. Notwithstanding the foregoing, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. Notwithstanding anything ~~herein~~ to the ~~contrary~~contrary contained herein or in any of the other Loan Documents, the Borrowers, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty; it being understood 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 Loan 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), (A) the Administrative Agent, as agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each of the Lenders 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 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 Lenders: (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 Requirements of 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 Lender or other Secured Party; it being understood that no Lender 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 clauses (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 clauses (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 be, credit bid by the Administrative Agent on a ratable basis. With respect to any 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 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 credit bid the Secured Obligations or purchase the Collateral in the relevant Disposition. In the event that the Administrative Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot be estimated without unduly delaying the ability of the Administrative Agent to consummate any credit bid or purchase in accordance with the second preceding paragraph, then any contingent or unliquidated claims not so estimated shall be disregarded, shall not be ~~liable for~~credit bid, and shall not be entitled to any interest in the portion or ~~be responsible for any loss~~the entirety of the Collateral purchased by means of such credit bid. Each Secured Party whose Secured Obligations are credit bid under clauses (b), ~~cost~~ (c) or ~~expense suffered by~~ (d) of the ~~Borrower~~ third preceding paragraph is entitled to receive interests in the Collateral or any ~~Lender as a result of, any determination~~ other asset acquired in connection with such credit bid (or in the Capital Stock of the ~~Revolving Exposure~~ acquisition vehicle or vehicles that are used to consummate such acquisition) on a ratable basis in accordance with the 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 proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, each Secured Party agrees that the Administrative Agent (irrespective of whether the principal of any Loan is then due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent has made any demand on the Top Borrower) 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 Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts to the extent due to the Lenders 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 claims and to distribute the same. Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent consents to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amount due to the Administrative Agent under Sections 2.12 and 9.03. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the ~~component amounts thereof~~ rights of any Lender or to authorize the Administrative Agent to vote in respect of the ~~Weighted Average Yield~~claim of any Lender in any such proceeding. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) ~~believed by~~ that it believes to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be have been made by the proper Person ~~(whether or~~ and shall not ~~such Person in fact meets the requirements set forth in the Loan Documents~~ incur any liability for ~~being the signatory, sender or authenticator thereof), and may act upon any such statement prior to receipt of written confirmation thereof~~relying thereon. 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,~~ Loan that by its terms must be fulfilled to the satisfaction of a ~~Lender or an Issuing Bank~~Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender ~~or such Issuing Bank~~ unless the Administrative Agent ~~shall have~~ has received notice to the contrary from such Lender ~~or such Issuing Bank~~ prior to the making of such ~~Loan or the issuance of such Letter of Credit~~Loan. 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 of 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~~it. The Administrative Agent and any such sub-agent may perform any of and all of their respective duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secureexe

Appears in 2 contracts

Sources: Second Lien Credit Agreement (Cotiviti Holdings, Inc.), Second Lien Credit Agreement (Cotiviti Holdings, Inc.)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to any Lender or Issuing Bank 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non-appealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent may resign ~~at any time from its capacity as such. In connection with such resignation, the Administrative Agent shall give~~ by providing not less than thirty (30) days advance written notice ~~of its intent to resign~~ to the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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 ~~intent to resign~~resignation, then the retiring Administrative Agent’s resignation shall nonetheless become effective at the end of such thirty (30) days period (except that in the case of any collateral security held by the Administrative Agent ~~may,~~ on behalf of the Lenders ~~and~~ or the Issuing ~~Banks~~Banks 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 (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 successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. Any resignation by SMBC as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and ~~in respect~~ a Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. Each Lender ~~and each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant Documents to which it ~~shall become~~ is a ~~Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to,~~ party. Except as otherwise provided in Section 9.02(b) or ~~be approved by or satisfactory to~~the Security Documents, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the ~~Lenders on~~ Loan Documents, provided that, without the ~~Effective Date~~ prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the ~~Funding Date. Except~~ 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 ~~exercise~~ Collateral, 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 ~~setoff rights~~ either a disposition of property (including, without limitation, any ~~Lender~~ property subject to a participation or repurchase transaction) not prohibited 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) 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~~ 9.02(c) hereof and Section 10.03 of the ~~Collateral~~ Guarantee and Security Agreement and (3) spread Liens to any Designated Indebtedness or ~~to enforce any~~ Hedging Agreement Obligations (as such terms are defined in the 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~~ Security Agreement) 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, Guarantee 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Security Agreement. 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 Secure.

Appears in 2 contracts

Sources: Senior Secured Revolving Credit Agreement (KKR FS Income Trust), Senior Secured Revolving Credit Agreement (KKR FS Income Trust)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to any Lender or Issuing Bank 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own fraud, gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secureas

Appears in 2 contracts

Sources: Senior Secured Revolving Credit Agreement (Goldman Sachs Private Credit Corp.), Senior Secured Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II)

The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase Bank is hereby appointed to act as Administrative Agent on behalf of the Lenders, the Swing Line Banks, and the Fronting Banks. Each of the ~~Lenders~~ Lenders, the Swing Line Banks and the ~~Issuing Banks~~ Fronting Banks, and each assignee thereof, hereby irrevocably ~~appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ authorizes the Administrative Agent to take such actions on behalf of such Lender, the Swing Line Banks and such Fronting Bank and to exercise such powers as are specifically delegated to the Administrative Agent by the terms ~~of the Loan Documents~~and provisions hereof, 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the The Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as hereby expressly authorized by the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with HoldingsLenders, the ~~Borrower or~~ Swing Line Banks and the Fronting Banks, without hereby limiting any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoingimplied authority, (a) to receive on behalf of the Lenders, the Swing Line Banks and the Fronting Banks all payments of principal of and interest on the Loans, all reimbursements made with respect to L/C Disbursements and all other amounts due to the Lenders, the Swing Line Banks and the Fronting Banks hereunder, and promptly to distribute to each Lender, each Swing Line Bank and each Fronting Bank its proper share of each payment so received; (b) to give prompt notice on behalf of the Lenders, the Swing Line Banks and the Fronting Banks to the Borrowers 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 to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed actual knowledge acquired in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents)connection with its agency hereunder; 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 this Agreement or any other Loan Document or applicable law, and (c) ~~except~~ to distribute promptly to each Lender, each Swing Line Bank and each Fronting Bank copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Administrative Agent. Neither the Administrative Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable ~~for the failure~~ as such to ~~disclose~~any Lender, any ~~information relating to Holdings, the Borrower, any Subsidiary~~ Swing Line Bank or any ~~other Affiliate~~ Fronting Bank 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 to make any inquiry concerning the performance or observance by the Borrowers of any of the ~~foregoing that is communicated to~~ terms, conditions, covenants or ~~obtained by the Person serving as Administrative Agent or any of its Affiliates~~ agreements contained in any ~~capacity~~Loan Document. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given responsible to the ~~Administrative Agent by Holdings~~Lenders, the ~~Borrower, a Lender or an Issuing Bank,~~ Swing Line Banks and the ~~Administrative Agent shall not be responsible~~ Fronting Banks for ~~or have any duty to ascertain or inquire into~~ (i) ~~any statement~~the due execution, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiencygenuineness, validity, ~~enforceability,~~ enforceability or effectiveness ~~or genuineness~~ of this Agreement or any other Loan ~~Document~~ Documents or ~~any~~ other ~~agreement, instrument~~ instruments or ~~document~~ agreements or (vii) the satisfaction of any condition set forth in ~~Article IV or elsewhere in this Agreement or~~ any ~~other~~ Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction~~ Agent. The duties 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,~~ Agent shall be mechanical and administrative in nature; the Administrative Agent shall not ~~be liable for, or be responsible for any loss, cost or expense suffered~~ have by ~~the Borrower~~ reason of this Agreement or any ~~Lender as~~ other Loan Document a ~~result of~~fiduciary relationship in respect of any Lender, any ~~determination of the Revolving Exposure~~ Swing Line Bank or ~~the component amounts thereof or of the Weighted Average Yield~~any Fronting Bank. 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, the Lenders, the Swing Line Banks or any Fronting Bank, as the case may be, and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all of the Lenders, the Swing Line Banks and all of the Fronting Banks. The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to ~~rely, and shall not incur~~ rely on any ~~liability for relying, upon any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing (including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and correct and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~Person (whether~~ person or ~~not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof)~~persons. The Administrative Agent may also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ rely upon any statement made to it orally or by telephone and believed ~~by it~~ to be made by the proper ~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. 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, Neither the Administrative Agent ~~may presume that such condition is satisfactory to such Lender~~ nor any of its directors, officers, employees or ~~such Issuing Bank unless the Administrative Agent~~ agents shall have ~~received notice~~ any responsibility to the ~~contrary from such Lender~~ Borrowers on account of the failure of or ~~such Issuing~~ delay in performance or breach by any Lender, any Swing Line Bank ~~prior~~ or any Fronting Bank of any of its obligations hereunder or to any Lender, any Swing Line Bank or any Fronting Bank on account of the ~~making~~ failure of ~~such Loan~~ or delay in performance or breach by any other Lender, any Swing Line Bank, any Fronting Bank or the ~~issuance~~ Borrowers of ~~such Letter~~ any of ~~Credit~~their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The foregoing shall not limit the obligations of JPMorgan Chase Bank (or its successors and assigns) in its capacity as Lender hereunder. 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~~ a 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 of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article VIII shall apply to any such ~~sub-~~agent ~~and to the Related Parties of the Administrative Agent and any such sub-agent~~ or employee, 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. The Administrative Agent shall not ~~be responsible for~~ have any duties or obligations except those expressly set forth herein. Without limiting the ~~negligence or misconduct~~ generality of ~~any sub-agents except to~~ the ~~extent~~ foregoing, the Lenders, the Swing Line Banks and the Fronting Banks hereby acknowledge that ~~a court of competent jurisdiction determines in a final and nonappealable judgment that~~ (a) the Administrative Agent ~~acted with gross negligence~~ shall not be subject to any fiduciary or ~~wilful misconduct~~ other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the ~~selection~~ Required Lenders, the Lenders, the Swing Line Banks or any Fronting Bank, as the case may be, 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 Borrowers or any of ~~such sub-agents~~their respective Subsidiaries that is communicated to or obtained by the Administrative Agent or any of its Affiliates in any capacity. Subject to the ~~terms~~ appointment and acceptance of ~~this paragraph~~a successor Administrative Agent as provided below, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the ~~Issuing~~ Swing Line Banks, the Fronting Banks and the ~~Borrower~~Borrowers. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the ~~right, with the consent of the Borrower (which shall not be unreasonably withheld or delayed),~~ right 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders~~ Lenders, the Swing Line Banks and the ~~Issuing~~ Fronting Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such 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 and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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, 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 ~~respect~~ any kind of business with the Borrowers or any of their respective Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent. Each of the ~~matters referred~~ Lenders, the Swing Line Banks and each of the Fronting Banks agrees (i) to reimburse the Administrative Agent, on demand, in the ~~proviso~~ amount of its pro rata share (based on its Commitment hereunder) of any expenses incurred for the benefit of the Lenders, the Swing Line Banks and the Fronting Banks by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, the Swing Line Banks and the Fronting Banks, which shall not have been reimbursed by the Borrowers 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 losses, claims, damages, liabilities and related expenses of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as the Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under ~~clause (a) above~~this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender, nor any Swing Line Bank nor any Fronting Bank shall be liable to the Administrative Agent for any portion of such losses, claims, damages, liabilities and related expenses resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees, or agents. Each ~~Lender~~ of the Lenders, the Swing Line Banks and each ~~Issuing Bank~~ of the Fronting Banks acknowledges that it has, independently and without reliance upon the Administrative Agent, ~~the Arrangers~~ any other Lender, any Swing Line Bank or any ~~other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing,~~ Fronting Bank 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~~ of the Lenders, the Swing Line Banks and each ~~Issuing~~ Fronting Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, ~~the Arrangers~~ any other Lender, any Swing Line Bank or any ~~other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing,~~ Fronting Bank 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 other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure.

Appears in 2 contracts

Sources: Competitive Advance and Revolving Credit Facility Agreement (Weyerhaeuser Co), Competitive Advance and Revolving Credit Facility Agreement (Weyerhaeuser Co)

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ each assignee of any Lender hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (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 ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (~~Company or any ~~similar term) herein~~ other Borrower pursuant to this Agreement or ~~in any~~ the other Loan ~~Document with reference~~ Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent is in its individual capacity and not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ any of the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower, any Subsidiary or any other Affiliate of~~ any of the ~~foregoing~~ Borrowers or any of their Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ a Borrower (in which case the ~~Borrower, a Lender or an Issuing Bank~~Administrative Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative 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~~ agents, which may include any of its branches or affiliates, appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (~~which shall~~ not to be unreasonably ~~withheld~~ withheld, conditioned or ~~delayed~~delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. In addition, if the Administrative Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and such Administrative Agent, to remove such Administrative Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld, conditioned or delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. If (a) no successor to a retiring 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 notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such ~~bank~~bank or (b) no successor to a removed Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days following the issuance of a notice of removal, the removal shall become effective on such 30th day and on such date the Required Lenders shall succeed as Administrative Agent to such removed Administrative 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 or removed Administrative Agent, as the case may be, and ~~the~~ such retiring or removed Administrative Agent shall be discharged from its duties and obligations ~~hereunder and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity~~ or removal, as ~~such~~the case may be, hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 10.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, as the case may be. 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 and in respect of the matters referred to in the proviso under clause~~ Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of the Administrative Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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. None of the Lenders identified on the facing page or signature pages of this Agreement or elsewhere herein as a “syndication agent” or “documentation agent” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. 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 Company or any Subsidiary, 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 in connection with the Loans or the Commitments, (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 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 Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, 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, ~~by delivering its signature page~~ 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 Commitments and this ~~Agreement on the Effective Date and funding its Loans on the Funding Date~~Agreement, or ~~delivering~~ (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its ~~signature page~~ sole discretion, and such Lender. In addition, unless sub-clause (i) in the immediately preceding paragraph is true with respect to ~~an Assignment and Assumption or any other Loan Document pursuant to which it shall become~~ a Lender ~~hereunder~~or a Lender has provided another representation, ~~shall be deemed to have acknowledged receipt of~~warranty and covenant as provided in accordance with sub-clause (iv) in the immediately preceding paragraph, such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and ~~consented~~ (y) covenants, from the date such Person became a Lender party hereto to ~~and approved~~the date such Person ceases being a Lender party hereto, ~~this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~for the benefit of, the Administrative ~~Agent~~ Agent, the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the ~~Lenders on~~ benefit of the ~~Effective Date~~ Company or any Subsidiary, that none of the ~~Funding Date. Except~~ Administrative Agent, the Arrangers or any of their respective Affiliates is 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 Commitments and this Agreement (including in connection with the reservation or exercise of ~~setoff~~ any 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 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~~under this Agreement, any Loan Document or any documents related to hereto or thereto). ~~In the event of a foreclosure by the~~ 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~~Arrangers hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, ~~as agent for and representative of the Secured Parties (but not any Lender~~ or ~~Lenders~~ to give advice in ~~its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled~~a fiduciary capacity, 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided~~ transactions contemplated hereby, and that such Person has a financial interest in the ~~Collateral~~ transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Commitments and this Agreement~~. By accepting~~ , (ii) may recognize a gain if it extended the ~~benefits of~~ Loans or the ~~Collateral~~Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, ~~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~~ 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 ~~be bound by~~ the ~~Loan Documents as a Secure~~foregoing.

Appears in 2 contracts

Sources: 364 Day Credit Agreement (Automatic Data Processing Inc), 364 Day Credit Agreement (Automatic Data Processing Inc)

The Administrative Agent. (a) Each of the ~~Lenders and~~ Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably appoints ~~the entity named~~ DBNY as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors to serve as administrative~~ agent and ~~collateral agent under the Loan Documents and~~ authorizes ~~the Administrative Agent~~ DBNY to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of hereof and the other 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~~ Each of the ~~Lenders and~~ Lenders, the Issuing Banks and the other Secured Parties hereby ~~grants~~ irrevocably appoints DBNY as its collateral agent and authorizes DBNY to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative Agent any required powers of attorney to execute any Security Document governed~~ collateral agent by the ~~laws~~ terms hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the collateral agent, the Lenders, the Issuing Bank and the Secured Parties, and no Loan Party shall have rights as a third party beneficiary of any of such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent”~~ provisions. (~~or any similar term~~b) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. 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~~ the term “Lender” or “Lenders” shall, 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~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks.~~ Lenders. (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~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 ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary,~~ expressly provided for herein or as by the ~~Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the~~ other Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, ; and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Company or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided ~~in the Loan Documents~~herein) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice describing such Default thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower~~Company, a Lender or an the 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document~~ therein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. . (d) The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the ~~issuance, extension, renewal or increase~~ issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an the Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or ~~such~~ the Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or ~~such~~ the 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~~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. . (e) The Administrative Agent may perform any of 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 of and all ~~their~~ of its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (f) The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may ~~resign~~ at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall~~ give notice of its ~~intent to resign~~ resignation to the Lenders, the Issuing ~~Banks~~ Bank and the ~~Borrower~~Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company and (unless an Event of Default under clause (a), (b), (h) or (i) of Article VII shall have occurred and be continuing) with the consent of the ~~Borrower~~ Company (which consent of the Company shall not be unreasonably withheld or delayed), 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 thirty (30) days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent ~~may,~~ may on behalf of the Lenders and the Issuing ~~Banks~~Bank, appoint a successor Administrative ~~Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon~~ Agent meeting the ~~acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all~~ qualifications set forth above; provided that if the ~~rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring~~ Administrative Agent shall ~~be discharged from its duties and obligations hereunder and under~~ notify the ~~other Loan Documents. The fees payable by Holdings~~ Company and the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by Holdings, the Borrower and such successor. Notwithstanding the foregoing, in the event Lenders that no ~~successor Administrative Agent shall have been so appointed and shall have~~ qualifying Person has accepted such ~~appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign~~appointment, ~~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~~ then such resignation ~~stated~~ shall nonetheless become effective in accordance with such ~~notice,~~ notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan ~~Documents; provided that, solely for purposes~~ Documents (except that in the case of ~~maintaining~~ any collateral security ~~interest granted to~~ held by the Administrative Agent on behalf of the Lenders or the Issuing Bank under any ~~Security Document for the benefit~~ of the ~~Secured Parties~~Loan Documents, 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~~ collateral security until such time as a successor Administrative Agent is ~~appointed~~ appointed) and ~~accepts such appointment in accordance with this paragraph~~ (~~it being understood~~ 2) all payments, communications and ~~agreed that~~ determinations provided to be made by, to or through the ~~retiring~~ Administrative Agent shall ~~have no duty~~ instead be made by or ~~obligation~~ to ~~take any further action under any Security Document~~each Lender and the Issuing Bank directly, ~~including any action required to maintain the perfection of any~~ until such ~~security interest), and (b)~~ time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent~~; provided that (i) all payments required to be made hereunder or under any other Loan Document to~~ , and the ~~Administrative Agent for the account of any Person other than the~~ retiring Administrative Agent shall be ~~made directly~~ discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this subsection). The fees payable by the Company to ~~such Person and (ii) all notices and other communications required or contemplated to be given or made to the~~ a successor Administrative Agent shall ~~also directly~~ be ~~given or made~~ the same as those payable to ~~each Lender~~ its predecessor unless otherwise agreed between the Company and ~~each Issuing Bank~~such successor. ~~Following~~ After the ~~effectiveness of the~~ retiring Administrative Agent’s resignation ~~from its capacity as such~~hereunder and under the other Loan Documents, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 the retiring Administrative Agent was acting as Administrative Agent. Any resignation by DBNY as Administrative Agent pursuant to this Section shall also constitute its resignation as Issuing Bank and ~~in respect~~ Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition of “Defaulting Lender,” the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Company and such Person, remove such Person as Administrative Agent, and the Company in consultation with the Lenders shall, unless an Event of Default shall have occurred and be continuing, in which case the Required Lenders in consultation with the Company shall, 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, without the consent of the Company (not to be unreasonably withheld), the Required Lenders shall not be permitted to select a successor that is not a U.S. financial institution described in Treasury Regulation Section 1.1441-1(b)(2)(ii) or a U.S. branch of a foreign bank described in Treasury Regulation Section 1.1441-1(b)(2)(iv)(A).] If no such successor shall have been appointed by the Company or the Required Lenders, as applicable, and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with notice on the Removal Effective Date. (g) Each Lender and ~~each~~ the Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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~~ the Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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,~~ . (h) To the extent required by ~~delivering its signature page to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or~~ any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toapplicable Laws, the Administrative Agent ~~or the Lenders on the Effective Date or the Funding Date. Except with respect~~ may withhold from any payment to ~~the exercise of setoff rights of~~ any Lender ~~in accordance with~~ an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section ~~9.08 or with respect to a Lender’s right to file a proof of claim in an insolvency proceeding~~2.16, ~~no Secured Party~~ each Lender shall ~~have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it being understood~~ indemnify and ~~agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by~~ hold harmless the Administrative Agent ~~on behalf~~ 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 ~~Secured Parties in accordance with the terms thereof. In the event of a foreclosure~~ Administrative Agent) incurred by or asserted against the Administrative Agent ~~on any of~~ by the ~~Collateral pursuant to a public or private sale or other disposition, the Administrative Agent~~ Internal Revenue Service 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secureother

Appears in 2 contracts

Sources: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)

Appears in 2 contracts

Sources: 364 Day Credit Agreement (Automatic Data Processing Inc), 364 Day Credit Agreement (Automatic Data Processing Inc)

The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, each Lender hereby appoints the Administrative Agent to act as its agent hereunder. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably ~~appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ authorizes the Administrative Agent to take such actions on behalf of such Lender and to exercise such powers as are specifically delegated to the Administrative Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other amounts due to the ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference Borrowers pursuant to ~~the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used~~ this Agreement as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 received by the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, 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 Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent ~~shall not have any duties or obligations except those expressly set forth in the Loan Documents,~~ and its ~~duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing~~directors, ~~(a) the Administrative Agent shall not be subject to any fiduciary or other implied duties~~officers, ~~regardless of whether a Default has occurred~~ employees and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and agents shall not be liable as such for any action taken or omitted by any of them, or be responsible for any statement, warranty or representation herein or the ~~failure~~ contents of any document delivered in connection herewith, except in each case to ~~disclose~~the extent of its or his own gross negligence or wilful misconduct in connection therewith, or be required to ascertain or to make any ~~information relating to Holdings,~~ inquiry concerning the ~~Borrower, any Subsidiary~~ performance or ~~any other Affiliate~~ observance by the Borrowers of any of the ~~foregoing that is communicated to~~ terms, conditions, covenants or ~~obtained by the Person serving as Administrative Agent or any of its Affiliates~~ 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~~for the due execution, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiencygenuineness, validity, ~~enforceability,~~ enforceability or effectiveness ~~or genuineness~~ of this Agreement or any other ~~Loan Document~~ instruments or ~~any other agreement~~agreements; provided, ~~instrument or document or (v)~~ however, that the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or~~ be responsible for its own due execution of this Agreement and any ~~loss, cost~~ other instrument or ~~expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield~~agreement relating to this Agreement. 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 hereby, 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, and shall not incur~~ rely on any ~~liability for relying, upon any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing (including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it in good faith to be genuine and correct and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~Person (whether~~ person or ~~not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof)~~persons. The Administrative Agent ~~also shall be entitled to rely~~and its directors, officers, employees and agents shall not ~~incur~~ have any ~~liability for relying, upon~~ responsibility to any ~~statement made~~ Borrower on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to ~~it orally~~ any Lender on account of the failure of or delay in performance or breach by telephone and believed by it to be made by the proper 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 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 other Lender or ~~an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender~~ any Borrower of any of its respective obligations hereunder or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditin connection herewith. The Administrative Agent may ~~consult with~~ execute any and all of its duties hereunder by or through agents of recognized standing 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~~ of recognized standing 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 of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment Lenders hereby acknowledge that the Administrative Agent ~~acted with gross negligence or wilful misconduct~~ shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the ~~selection of such sub-agents~~Required Lenders. Subject to the ~~terms~~ appointment and acceptance of ~~this paragraph~~a successor Administrative Agent as provided below, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Borrowers. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the ~~right~~right to appoint a successor; provided, ~~with~~ however, -------- ------- that any such appointment shall be subject to the prior written consent of ~~the Borrower~~ JCPenney (which consent shall not be unreasonably withheld so long as such successor shall be (i) a bank with a rating of Aa2 or ~~delayed~~better from ▇▇▇▇▇'▇ or a rating of AA or better from S&P, or an Affiliate of any such bank, or (ii) any Co-Agent)~~, 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent; provided, ~~which~~ however, that any such appointment shall be -------- ------- subject to the prior written consent of JCPenney (which consent shall not be unreasonably withheld so long as such successor shall be (i) a bank with ~~an office in New York, New York~~a rating of Aa2 or better from ▇▇▇▇▇'▇ or a rating of AA or better from S&P, or an Affiliate of any such bank, or (ii) any Co-Agent). Upon the acceptance of ~~its~~ any appointment as Administrative Agent hereunder by a permitted 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 and under the other Loan Documents. The fees payable by Holdings and the Borrower to a successor~~ as Administrative Agent ~~shall be the same as those payable to its predecessor unless otherwise agreed by Holdings, the Borrower and such successor~~hereunder. 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 After an 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 's resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. The Borrowers shall have the right to replace the Administrative Agent if it requests compensation under Section 2.19, but only in accordance with the provisions of Section 2.20(b). With respect to the Loans made by it hereunder, the Administrative Agent (and any Lender appointed as a successor 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 (or such successor Administrative Agent) and the Administrative Agent and its Affiliates (and any such successor Administrative Agent and its Affiliates) may accept deposits from, lend money to and generally engage in ~~respect~~ any kind of business with any Borrower or Subsidiary or any Affiliate of any Borrower as if the Administrative Agent (or such successor Administrative Agent) were not the Administrative Agent. (i) to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder) of any expenses (other than expenses in connection with the negotiation, preparation and closing of this Agreement) incurred for the benefit of the ~~matters referred~~ Lenders by the 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 Borrowers and (ii) to indemnify and hold harmless the Administrative Agent and any of its directors, officers, employees or agents, on demand, in the ~~proviso~~ 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 its capacity as Administrative Agent or any of them in any way relating to or arising out of this Agreement or the Transactions or any action taken or omitted by it or any of them under ~~clause (a) above~~this Agreement, to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to the -------- Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or wilful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ represents that it has not relied upon Margin Stock owned by JCPenney or any Subsidiary in its credit analysis or its decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative No Co-Agent or the Lenders on the Effective Date or the Funding Date. Except with respect to the 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 Collateral~~ duties 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 responsibilities hereunder 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 capacity 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Securesuch.

Appears in 2 contracts

Sources: 364 Day Revolving Credit Agreement (Penney J C Funding Corp), Revolving Credit Agreement (Penney J C Funding Corp)

The Administrative Agent. (a) Each of the Lenders and the Issuing Banks hereby irrevocably appoints ~~the entity named~~ Bank of America as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors to serve as administrative~~ agent and ~~collateral agent under the Loan Documents and~~ authorizes ~~the Administrative Agent~~ Bank of America to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of hereof and the other 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ irrevocably appoints Bank of America as its collateral agent and authorizes Bank of America to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative Agent any required powers of attorney to execute any Security Document governed~~ collateral agent by the ~~laws~~ terms hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the collateral agent, the Lenders and the Issuing Bank, and the Borrower shall have no rights as a third party beneficiary of any of such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent”~~ provisions, except as expressly set forth in subparagraph (~~or any similar term~~f) ~~herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied~~ below. (~~or express~~b) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. 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~~ the term “Lender” or “Lenders” shall, 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~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings, the~~ a Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks.~~ Lenders. (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~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 ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary,~~ expressly provided for herein or as by the ~~Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the~~ other Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, ; and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided ~~in the Loan Documents~~herein) or in the absence of its own bad faith, gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice describing such Default thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower~~Company, a Lender or an the 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document~~ therein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. . (d) The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the ~~issuance, extension, renewal or increase~~ issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an the Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or ~~such~~ the Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or ~~such~~ the 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. . (e) The Administrative Agent may perform any of 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 of and all ~~their~~ of its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (f) The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may ~~resign~~ at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall~~ give notice of its ~~intent to resign~~ resignation to the Lenders, the Issuing ~~Banks~~ Bank and the ~~Borrower~~Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower and (unless an Event of Default under clause (a) or (b), (h) or (i) of Article VII shall have occurred and be continuing) with the consent of the ~~Borrower~~ Company (which consent of the Company shall not be unreasonably withheld or delayed), 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 thirty (30) days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent ~~may,~~ may on behalf of the Lenders and the Issuing ~~Banks~~Bank, appoint a successor Administrative ~~Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon~~ Agent meeting the ~~acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all~~ qualifications set forth above; provided that if the ~~rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring~~ Administrative Agent shall ~~be discharged from its duties and obligations hereunder and under~~ notify the ~~other Loan Documents. The fees payable by Holdings~~ Company and the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by Holdings, the Borrower and such successor. Notwithstanding the foregoing, in the event Lenders that no ~~successor Administrative Agent shall have been so appointed and shall have~~ qualifying Person has accepted such ~~appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign~~appointment, ~~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~~ then such resignation ~~stated~~ shall nonetheless become effective in accordance with such ~~notice,~~ notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan ~~Documents; provided that, solely for purposes~~ Documents (except that in the case of ~~maintaining~~ any collateral security ~~interest granted to~~ held by the Administrative Agent on behalf of the Lenders or the Issuing Bank under any ~~Security Document for the benefit~~ of the ~~Secured Parties~~Loan Documents, 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~~ collateral security until such time as a successor Administrative Agent is ~~appointed~~ appointed) and ~~accepts such appointment in accordance with this paragraph~~ (~~it being understood~~ 2) all payments, communications and ~~agreed that~~ determinations provided to be made by, to or through the ~~retiring~~ Administrative Agent shall ~~have no duty~~ instead be made by or ~~obligation~~ to ~~take any further action under any Security Document~~each Lender and the Issuing Bank directly, ~~including any action required to maintain the perfection of any~~ until such ~~security interest), and (b)~~ time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent~~; provided that (i) all payments required to be made hereunder or under any other Loan Document to~~ , and the ~~Administrative Agent for the account of any Person other than the~~ retiring Administrative Agent shall be ~~made directly~~ discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Company to ~~such Person and (ii) all notices and other communications required or contemplated to be given or made to the~~ a successor Administrative Agent shall ~~also directly~~ be ~~given or made~~ the same as those payable to ~~each Lender~~ its predecessor unless otherwise agreed between the Borrower and ~~each Issuing Bank~~such successor. ~~Following~~ After the ~~effectiveness of the~~ retiring Administrative Agent’s resignation ~~from its capacity as such~~hereunder and under the other Loan Documents, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 the retiring Administrative Agent was acting as Administrative Agent. Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as Issuing Bank and ~~in respect~~ Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition of “Defaulting Lender,” 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 the Company in consultation with the Lenders shall, unless an Event of Default shall have occurred and be continuing, in which case the Required Lenders in consultation with the Company shall, 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, without the consent of the Borrower (not to be unreasonably withheld), the Required Lenders shall not be permitted to select a successor that is not a U.S. financial institution described in Treasury Regulation Section 1.1441-1(b)(2)(ii) or a U.S. branch of a foreign bank described in Treasury Regulation Section 1.1441-1(b)(2)(iv)(A). If no such successor shall have been appointed by the Borrower or the Required Lenders, as applicable, and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with notice on the Removal Effective Date. (g) Each Lender and ~~each~~ the Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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~~ the Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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,~~ . (h) To the extent required by ~~delivering its signature page to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or~~ any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toapplicable Laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the ~~Lenders on~~ provisions of Section 2.16, each Lender shall indemnify and hold harmless the ~~Effective Date~~ 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 ~~Funding Date~~Administrative Agent by the 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, 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). ~~Except with respect~~ A certificate as to the ~~exercise~~ amount of ~~setoff rights of~~ such payment or liability delivered to 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 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~~shall be conclusive absent manifest error. ~~In the event of a foreclosure by~~ Each Lender hereby authorizes 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 set off and apply any ~~of the Loan Document Obligations as a credit on account of the purchase price for~~ and all amounts at any ~~collateral payable by the Administrative Agent on behalf of the Secured Parties at~~ time owing to such sale or other disposition. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 Lender under this Agreement or any other Loan Document ~~except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party to~~ against any ~~such Hedging Agreement shall be deemed to have appointed~~ amount due the Administrative Agent ~~to serve as administrative agent~~ under this clause (h). The agreements in this clause (h) 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 Commitments and ~~collateral agent under~~ the ~~Loan Documents~~ repayment, satisfaction or discharge of all other Obligations. For the avoidance of doubt, a “Lender” shall, for purposes of this clause (h), include any Swingline Lender and ~~agreed to be bound by the Loan Documents as a Secure~~any Issuing Bank.

Appears in 2 contracts

Sources: Credit Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.)

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ each assignee of any Lender hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (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 ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (~~Company or any ~~similar term) herein~~ other Borrower pursuant to this Agreement or ~~in any~~ the other Loan ~~Document with reference~~ Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent is in its individual capacity and not ~~intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used~~ as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the~~ Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ any of the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower, any Subsidiary or any other Affiliate of~~ any of the ~~foregoing~~ Borrowers or any of their Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ a Borrower (in which case the ~~Borrower, a Lender or an Issuing Bank~~Administrative Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (~~which~~ except during the continuance of an Event of Default hereunder, when no such consent shall ~~not~~ be ~~unreasonably withheld or delayed~~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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in 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 to, and become vested ~~with~~ with, all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause~~ Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of the Administrative Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ None of the Lenders identified on the facing page or signature ~~page to~~ pages of this Agreement ~~on the Effective Date and funding its Loans on the Funding Date~~or elsewhere herein as a “syndication agent”, “documentation agent” or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 “managing agent” shall have any ~~right individually to realize upon any of the Collateral~~ right, power, obligation, liability, responsibility 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 duty under this Agreement ~~or any~~ other ~~Loan Document except~~ than those applicable to all Lenders as expressly provided in the Collateral Agreement. 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 Securesuch.

Appears in 2 contracts

Sources: 364 Day Credit Agreement (Automatic Data Processing Inc), Credit Agreement (Automatic Data Processing Inc)

The Administrative Agent. Each of the ~~Lenders~~ Lenders, the Swingline Lender and the Issuing Banks hereby irrevocably appoints ~~the entity named~~ CIT (or any successor appointed pursuant hereto) as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors to serve as administrative~~ agent ~~and collateral agent under the Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition, to the extent required under the laws~~ The provisions of ~~any jurisdiction~~ this Article 8 (other than the ~~United States~~ fifteenth, sixteenth and nineteenth paragraphs hereof) are solely for the benefit of ~~America~~the Administrative Agent, ~~each of~~ the Swingline Lender, the Lenders and the Issuing ~~Banks hereby grants~~ Banks, and the Borrowers shall not have rights as a third party beneficiary of any such provision. Each Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and each Issuing Bank shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Article 8 with respect to any ~~required powers of attorney to execute any Security Document governed~~ acts taken or omissions suffered by ~~the laws of such jurisdiction on such Lender’s or~~ such Issuing ~~Bank’s behalf. It is understood~~ Bank in connection with Letters of Credit issued by it or proposed to be issued by it and ~~agreed that~~ the ~~use~~ applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “~~agent~~Administrative Agent” as used in this Article 8 included such Issuing Bank with respect to such acts or omissions, and (~~or any similar term~~ii) as additionally provided herein ~~or in any other Loan Document~~ with ~~reference~~ respect to the ~~Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law~~Issuing Bank. ~~Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The~~ Any 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~~Agent and the term “Lender” or “Lenders” shall, ~~and~~ unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder~~ hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and ~~without~~ acknowledge that the Administrative Agent shall not be under any ~~duty~~ obligation to ~~account therefor~~ provide such information to ~~the Lenders or the Issuing Banks~~them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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~~continuing and without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law and instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law~~laws, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower,~~ any ~~Subsidiary~~ Loan Party or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct ~~(such absence to be presumed unless otherwise~~ as determined by the final judgment of a court of competent ~~jurisdiction by a final and nonappealable 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 ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower, a Lender~~ Borrower Representative or ~~an Issuing Bank~~any Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire ~~into~~ into, and each Loan Party and Secured Party hereby waives and agrees not to assert any right, claim or cause of action based on, except to the extent of liabilities resulting primarily from Administrative Agent’s own gross negligence or willful misconduct in connection with its duties expressly set forth herein: (i) any statement, warranty or representation made in or in connection with ~~this Agreement or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default or Event of Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document or~~ document, (v) the creation, perfection or priority of Liens on the Collateral or the existence, value, sufficiency, state or condition of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere in ~~this Agreement or~~ any ~~other~~ Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent~~ Agent, (vii) the properties, books or ~~satisfaction~~ records 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower Loan Party or any ~~Lender as a result of, any determination of the Revolving Exposure or the component amounts~~ Affiliate thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 (bviii) 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 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except liability with respect to ~~the exercise of setoff rights~~ or arising out of any ~~Lender in accordance with Section 9.08~~ assignment 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 Collateral or to enforce any Guarantee participation 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~~ disclosure 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 saleinformation, 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement~~ or any ~~other Loan Document except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral~~Security Party’s representatives, 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 SecureApproved Funds or

Appears in 2 contracts

Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)

The Administrative Agent. Each of the Lenders and the Issuing ~~Banks~~ Lender hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition, to~~ The Administrative Agent shall also act as the ~~extent required~~ “collateral agent” under the ~~laws of any jurisdiction other than the United States of America~~Loan Documents, and each of the Lenders (in its capacities as a Lender) hereby irrevocably appoints and ~~the Issuing Banks hereby grants to~~ authorizes the Administrative Agent to act as the agent of (and to hold any ~~required powers of attorney to execute any Security Document governed~~ security interest created by the ~~laws~~ Security Documents for and on behalf of or on trust for) such ~~jurisdiction~~ Lender for purposes of acquiring, holding and enforcing any and all Liens on ~~such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use~~ Collateral granted by any of the ~~term~~ Obligors to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” (or and any ~~similar term) herein or in any other Loan Document with reference to~~ co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent ~~is not intended~~ pursuant to ~~connote~~ this Article for purposes of holding or enforcing any ~~fiduciary duty or other implied~~ Lien on the Collateral (or ~~express~~any portion thereof) ~~obligations arising~~ granted under ~~agency doctrine~~ 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 including Section 10.03, 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. Without limiting any other provision of this Article, each Lender hereby authorizes the Administrative Agent to enter into (and/or agree to any amendments to) from time to time (i) any Security Documents and (ii) intercreditor (including subordination) arrangements on behalf of the Lenders in respect of any ~~applicable law. Instead~~Other Debt or Additional Permitted Indebtedness to the extent permitted or contemplated hereunder, ~~such term is used~~ in each case as ~~a matter of market custom~~ the Administrative Agent shall determine to be appropriate and ~~is intended to create or reflect only an administrative relationship between contracting parties~~consistent with the provisions hereof. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrower~~an Obligor), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing ~~Banks~~ Lender 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 ~~(which~~ so long as no Default shall ~~not be unreasonably withheld or delayed)~~exist, 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing ~~Banks~~Lender, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with a minimum capital and surplus of $500,000,000 and with an office in 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 and under the other Loan Documents~~hereunder. 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Except as otherwise provided in Section 10.02(b) with respect to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toAgreement, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or the Lenders on the Effective Date or the Funding Date. Except with respect to the 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 waiver under any of the ~~Collateral or to enforce any Guarantee~~ Loan Documents, provided that, without the prior consent 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 dispositioneach Lender, the Administrative Agent shall not (except as provided herein or ~~any Lender may be~~ in the ~~purchaser~~ Security Documents) release all or ~~licensor of any or~~ substantially all of the collateral or terminate any Lien with respect thereto under the Security Agreement, except that no such ~~Collateral at any such sale or other disposition~~consent shall be required, and the Administrative ~~Agent~~Agent is hereby authorized, ~~as agent for and representative~~ to release any Lien covering property that is the subject of ~~the Secured Parties (but not any Lender~~ either a Disposition of property permitted hereunder or ~~Lenders in its or their respective individual capacities unless~~ a Disposition to which 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Securehave

Appears in 2 contracts

Sources: Incremental Loan Amendment (Sinclair Broadcast Group Inc), Incremental Loan Amendment (Sinclair Broadcast Group Inc)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non-appealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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 ~~intent to resign~~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 ~~and~~ or the Issuing ~~Banks~~Banks 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 (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 successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. Any resignation by Truist Bank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and ~~in respect~~ a Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. Each Lender ~~and each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant Documents to which it ~~shall become~~ is a ~~Lender hereunder, shall be deemed~~ party. Except as otherwise provided in Section 9.02(b) with respect to ~~have acknowledged receipt of, and consented to and approved,~~ this ~~Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~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 ~~Lenders on~~ Loan Documents, provided that, without the ~~Effective Date~~ prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the ~~Funding Date. Except~~ 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 ~~exercise~~ Collateral, 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 ~~setoff rights~~ either a disposition of property (including, without limitation, any ~~Lender~~ property subject to a participation or repurchase transaction) not prohibited 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) in accordance with Section ~~9.08~~ 9.02(c) and (3) spread Liens to any Designated Indebtedness or ~~with respect to a Lender’s right to file a proof of claim~~ Hedging Agreement Obligations (as such terms are defined in ~~an insolvency proceeding, 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~~ Security Agreement) 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, Guarantee 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Security Agreement. 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 Secure.

Appears in 2 contracts

Sources: Senior Secured Revolving Credit Agreement (Blue Owl Capital Corp), Senior Secured Credit Agreement (Blue Owl Technology Finance Corp. II)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan ~~Documents~~ Documents, and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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~~ Collateral Document governed by the laws of such jurisdiction on such Lender’s or ~~such~~ Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The ~~Person~~ bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~Person~~ bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) 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, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower,~~ Company or any Subsidiary or ~~any~~ other Affiliate ~~of any of the foregoing~~ thereof that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own bad faith, gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower Representative or a ~~Lender or an Issuing Bank~~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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ 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 IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper 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 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 (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 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 ~~such~~ Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or ~~such~~ 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~~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.~~ experts The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the bad faith, negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with bad faith, gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing Banks and the ~~Borrower~~Borrower Representative. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (which shall not be unreasonably withheld or delayed)~~Borrowers, to appoint a ~~successor~~successor that is an Eligible Successor Agent. 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, in consultation with the Borrower Representative, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which is an Eligible Successor Agent, ~~which shall be~~ until such time, if any, as the Required Lenders appoint a ~~bank with an office in New York, New York, or an Affiliate of any such bank~~successor Administrative 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 and under the other Loan Documents~~hereunder. The fees payable by ~~Holdings and~~ the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~by Holdings,~~ between the ~~Borrower~~ Borrowers and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this ~~Article~~ 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,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender and ~~each~~ Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent, ~~the Arrangers~~ any Arranger, any Lender 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 ~~each~~ Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, ~~the Arrangers~~ any Arranger, any Lender 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. The Loan Parties acknowledge and agree that the Administrative Agent may prepare and distribute to the Lenders Reports containing information obtained by the Administrative Agent through the conduct of appraisals and field examinations pursuant to Sections 5.12 and 5.13 and the exercise of its inspection rights under Section 5.09. Each ~~Lender~~Lender hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or warranty, ~~by delivering~~ express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its ~~signature page~~ internal use, not share the Report with any Loan Party or any other Person except as otherwise permitted pursuant to this ~~Agreement on~~ Agreement; and (e) without limiting the ~~Effective Date~~ generality of any other indemnification provision contained in this Agreement, it will pay and ~~funding its Loans on~~ protect, and indemnify, defend, and hold the ~~Funding Date~~Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct or ~~delivering its signature page~~ indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and, except solely to ~~an Assignment~~ the extent of the Borrowers’ rights to consent pursuant to and ~~Assumption~~ subject to the conditions set forth in this Article, none of the Borrowers or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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~~ rights as a third party beneficiary of any such provisions. Each Lender Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral ~~or to enforce any Guarantee~~ and of the ~~Obligations, it being understood and agreed that all powers, rights and remedies~~ Loan Guarantee provided under the Loan ~~Documents may be exercised solely by~~ Documents, to have agreed to the ~~Administrative Agent~~ provisions of this Article. Notwithstanding anything herein to the contrary, neither the Arrangers nor any Person named on ~~behalf~~ the cover page of ~~the Secured Parties in accordance with the terms thereof. In the event of~~ this Agreement as a ~~foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative~~ Syndication Agent or a Documentation Agent shall have any ~~Lender may be the purchaser~~ duties 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document (except in its capacity, as ~~expressly provided in~~ applicable, as a Lender or an Issuing Bank), but all such Persons shall have the ~~Collateral Agreement. By accepting the benefits~~ benefit 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 Secureindemnities provided for hereunder.

Appears in 2 contracts

Sources: Credit Agreement (Ascena Retail Group, Inc.), Amendment and Restatement Agreement (Ascena Retail Group, Inc.)

The Administrative Agent. ~~Each~~ In order to expedite the transactions contemplated by this Agreement, JPMorgan is hereby appointed to act as Administrative Agent on behalf of the Lenders and the Issuing ~~Banks~~ Bank. Each of the Lenders and each assignee of any such Lender hereby irrevocably ~~appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Administrative Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders and the Issuing Bank, without hereby limiting any implied authority, (a) to ~~the extent required under the laws of any jurisdiction other than the United States of America, each~~ receive on behalf of the Lenders and the Issuing ~~Banks hereby grants~~ Bank all payments of principal of and interest on the Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or the Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney~~ all notices, financial statements and other materials delivered by either Borrower pursuant to ~~execute any Security Document governed~~ this Agreement or the other Loan Documents as received by the ~~laws~~ Administrative Agent. Neither the Administrative Agent nor any of its directors, officers, employees or agents shall be liable as such ~~jurisdiction on such Lender’s~~ for any action taken or ~~such Issuing Bank’s behalf. It is understood and agreed that the use~~ omitted by any of ~~the term “agent” (~~them except for its or his own gross negligence or willful misconduct, or be responsible for any ~~similar term)~~ 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 each Borrower or any other Loan ~~Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine~~ Party of any ~~applicable law. Instead~~of the terms, ~~such term is used as a matter of market custom and is intended to create~~ conditions, covenants or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or agreements contained in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing BanksLoan Document. The Administrative Agent shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement, any other Loan Document, or any other document, instrument or agreement. 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 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 on any instrument 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. Neither the Administrative Agent nor any of its directors, officers, employees or agents shall have any ~~duties~~ responsibility to either Borrower on account of the failure of or delay in performance or breach by any Lender or the Issuing Bank of any of its obligations ~~except those expressly set forth~~ hereunder or to any Lender or the Issuing Bank on account of the failure of or delay in performance or breach by any other Lender or the Issuing Bank or either Borrower of any of their respective obligations hereunder or under any other Loan ~~Documents,~~ Document or in connection herewith or therewith. The Administrative Agent may execute any and ~~its~~ all duties hereunder by or through agents or employees and shall be ~~administrative~~ entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in ~~nature~~good faith by it in accordance with the advice of such counsel. ~~Without limiting the generality of the foregoing,~~ The Lenders hereby acknowledge that (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 and (b) the Administrative Agent shall not ~~have~~ be under any duty to take any discretionary action or permitted to ~~exercise any discretionary power, except discretionary rights and powers expressly contemplated~~ be taken by it pursuant to the ~~Loan Documents that the Administrative Agent is required to exercise as directed~~ provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agentsLenders. Subject to the ~~terms~~ appointment and acceptance of ~~this paragraph~~a successor Administrative Agent as provided below, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Borrowers. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the ~~right, with the consent of the Borrower (which shall not be unreasonably withheld or delayed),~~ right to appoint a ~~successor~~successor reasonably satisfactory to 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such 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 and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 10.05 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 an Administrative Agent, and the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in ~~respect~~ any kind of ~~the matters referred to in the proviso under clause~~ business with either Borrower or any Subsidiary or other Affiliates thereof as if it were not an Administrative Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Borrowers 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrowers, 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 that are determined by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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,~~ Agreement or any other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure.

Appears in 2 contracts

Sources: Credit Agreement (El Paso Electric Co /Tx/), Credit Agreement (El Paso Electric Co /Tx/)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to any Lender or Issuing Bank 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own fraud, gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non-appealable judgment that the Administrative Agent acted with fraud, gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent may resign ~~at any time from its capacity as such. In connection with such resignation, the Administrative Agent shall give~~ by providing not less than thirty (30) days advance written notice ~~of its intent to resign~~ to the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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 ~~intent to resign~~resignation, then the retiring Administrative Agent’s resignation shall nonetheless become effective at the end of such thirty (30) days period (except that in the case of any collateral security held by the Administrative Agent ~~may,~~ on behalf of the Lenders ~~and~~ or the Issuing ~~Banks~~Banks 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 (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 successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. Any resignation by Truist Bank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and ~~in respect~~ a Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. Each Lender ~~and each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant Documents to which it ~~shall become~~ is a ~~Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to,~~ party. Except as otherwise provided in Section 9.02(b) or ~~be approved by or satisfactory to~~Section 9.02(c), the Administrative Agent or may, with the Lenders on the Effective Date or the Funding Date. Except with respect to the 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 prior consent 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 Required Lenders (but not otherwise), consent to any ~~Lender~~ modification, supplement 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 waiver under 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 SecureDocuments.

Appears in 2 contracts

Sources: Senior Secured Revolving Credit Agreement (Goldman Sachs Private Credit Corp.), Senior Secured Revolving Credit Agreement (Goldman Sachs Private Credit Corp.)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and authorizes the Administrative Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings, the~~ any Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the~~ any Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by ~~Holdings, the~~ any Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by ~~the~~ any Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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~~ 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which (a) shall not be unreasonably withheld or ~~delayed~~delayed and (b) shall not be required if an Event of Default of the type set forth in Section 7.01(a), (b), (h) or (i) has occurred and is continuing), to appoint a successor; provided that any such successor shall be a Lender or an Affiliate of a Lender at the time 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 intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by ~~Holdings, the Borrower~~ Borrowers and such successor. 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 from its capacity as such, the provisions of this Article 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~~ 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 ~~on the Effective Date~~ and funding its Loans on the ~~Funding~~ Effective Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding~~ Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure~~

Appears in 2 contracts

Sources: Credit Agreement (Allegion PLC), Credit Agreement (Allegion PLC)

The Administrative Agent. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably appoints the entity named as the Administrative Agent in the heading of this Agreement and its successors to serve ~~as administrative agent and collateral agent~~ in the applicable capacity under the Loan ~~Documents~~ Documents, and authorizes the Administrative Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks~~Lenders. The Administrative Agent and each of the Arrangers, as applicable, shall not have any duties or obligations except those expressly set forth in the Loan Documents, and ~~its~~ their duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent and each of the Arrangers, as applicable: (a) ~~the Administrative Agent~~ shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is ~~continuing~~continuing (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) 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, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) ~~the Administrative Agent~~ shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is are required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, ~~and~~ (c) ~~except as expressly set forth in the Loan Documents, the Administrative Agent~~ shall not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any ~~information relating to Holdings, the Borrower~~Lender, any ~~Subsidiary~~ credit or ~~any~~ other ~~Affiliate of any~~ information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of the ~~foregoing that is communicated to or obtained by the Person serving as Administrative Agent~~ Company or any of its ~~Affiliates~~ Affiliates, that is communicated to, obtained or in the possession of, the Administrative Agent, the Arrangers or any of their Related Parties in any capacity~~. The~~ , except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent herein, (d) shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~. The Administrative Agent~~ , (e) shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower, a Lender~~ Company or ~~an Issuing Bank~~any Lender, and ~~the Administrative Agent~~ shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder or~~ thereunder or in connection ~~herewith or~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or document (including, for the avoidance of doubt, in connection with the Administrative Agent’s or each Arranger’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 IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper 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 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 (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 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,~~ Loan that by its terms must be fulfilled to the satisfaction of a ~~Lender or an Issuing Bank~~Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender ~~or such Issuing Bank~~ unless the Administrative Agent shall have received notice to the contrary from such Lender ~~or such Issuing Bank~~ prior to the making of such ~~Loan or the issuance of such Letter of Credit~~Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the ~~Borrower~~Company), independent accountants and other experts selected by itit with reasonable care, 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. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from, or be responsible for any loss, cost or expense suffered on account of, (i) any errors or omissions in the records maintained by the Administrative Agent as contemplated by Section 9.04(b)(iv) or (ii) any determination by the Administrative Agent that any Lender is a Defaulting Lender, or the effective date of such status, it being further understood and agreed that the Administrative Agent shall not have any obligation to determine whether any Lender is a Defaulting Lender. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any of its sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, ~~with~~ subject to the consent of the ~~Borrower~~ Company (~~which shall~~ not to be unreasonably ~~withheld~~ withheld, conditioned or delayed) so long as no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 shall have occurred and be 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 intent to resign, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. If the Person serving as the 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 Company and such Person remove such Person as the Administrative Agent and, subject to the consent of the Company (not to be unreasonably withheld, conditioned or delayed) so long as no Event of Default under clause (a), (b), (h) or (i) of Section 7.01 shall have occurred and be continuing, appoint a successor. Upon the acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent, and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by ~~Holdings and~~ the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by ~~Holdings,~~ the ~~Borrower~~ Company and such successor. 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~~ Lenders and the ~~Borrower~~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, 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 retiring Administrative Agent for the account of any Person other than the retiring 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 retiring Administrative Agent shall also directly be given or made to each ~~Lender and each Issuing Bank~~Lender. Following the effectiveness of the Administrative Agent’s resignation or removal from its capacity as such, the provisions of this Article 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 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 was acting as the Administrative Agent. Each Lender expressly acknowledges that none of the Administrative Agent nor the Arrangers has made any representation or warranty to it, and that no act by the Administrative Agent or the Arrangers hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of the Company or any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent or the Arrangers to any Lender as to any matter, including whether the Administrative Agent or the Arrangers have disclosed material information in their (or their Related Parties’) possession. Each Lender represents to the Administrative Agent and ~~in respect of~~ the ~~matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges~~ Arranger that it has, independently and without reliance upon the Administrative Agent, the ~~Arrangers or~~ Arrangers, any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their Related Parties ~~of any of the foregoing,~~ and based on such documents and information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Company and its Subsidiaries, and all applicable bank or other regulatory laws relating to the transactions contemplated hereby, and made its own decision to enter into this ~~Agreement~~Agreement and to extend credit to the Company hereunder. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative Agent, the ~~Arrangers or~~ Arrangers, any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their Related Parties ~~of any of the foregoing,~~ and based on such documents and information as it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of each of the Company. Each Lender represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender agrees not to assert a claim in contravention of the foregoing. Each Lender represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender, 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 the Company waives any conflict of interest, now contemplated or arising hereafter, in connection therewith and agrees not to assert against the Administrative Agent, any of its Affiliates or any Related Party of any of the foregoing any claims, causes of action, damages or liabilities of whatever kind or nature relating thereto. Each Lender, by delivering its signature page to this ~~Agreement on the Effective Date and funding its Loans on the Funding Date~~Agreement, or delivering its signature page to an Assignment and Assumption or any other ~~Loan Document~~ document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, ~~this Agreement and~~ each ~~other~~ 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 Funding~~ Date. ~~Except~~ In case of the pendency of any proceeding with respect to the ~~exercise of setoff rights of~~ Company under any ~~Lender in accordance with Section 9.08~~ United States (Federal 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 Collateral~~ state) 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secureforei

Appears in 2 contracts

Sources: Revolving Credit Agreement (Marvell Technology, Inc.), Revolving Credit Agreement (Marvell Technology, Inc.)

The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase Bank, N.A. is hereby appointed to act as the Administrative Agent on behalf of the Lenders. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably ~~appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ authorizes the Administrative Agent to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Administrative ~~Agent~~ Agents by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans, payments in respect of the Letters of Credit and all other amounts due to the ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company, MJC or any Borrowing Subsidiary of any Event of Default of which 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or has actual knowledge acquired in ~~any other Loan Document~~ connection with ~~reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under~~ its agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, 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 Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents)hereunder; 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 this Agreement or any other Loan Document or applicable law, and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Credit Party pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents~~Administrative Agent. Notwithstanding the foregoing, the Administrative Agent shall ~~not~~ have no duties under the Loan Documents in its capacity as Administrative Agent and none of the Syndication Agent or Joint Lead Arrangers or Bookrunners listed on the cover page hereof shall have any ~~duty to disclose~~powers, ~~and~~ duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as an agent or a Lender. Neither the Administrative Agent nor any of its respective directors, officers, employees or agents shall ~~not~~ 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 ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose~~ascertain or to make any inquiry concerning the performance or observance by the Company, ~~any information relating to Holdings, the Borrower, any Subsidiary~~ MJC or any ~~other Affiliate~~ Borrowing Subsidiary of any of the ~~foregoing that is communicated to~~ terms, conditions, covenants or ~~obtained by the Person serving as Administrative Agent or any of its Affiliates~~ 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~~ Loan or ~~not taken~~ issues or participates in any Letter of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary, or as~~ binding on all the Lenders. The Administrative Agent ~~shall believe~~ shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final genuine and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine correct and to have been signed or sent ~~or otherwise authenticated~~ by the proper 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)~~Persons. The Administrative Agent also 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 (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 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, Neither the Administrative Agent ~~may presume that such condition is satisfactory~~ nor any of its respective directors, officers, employees or agents shall have any responsibility to ~~such~~ the Company, MJC or any Borrowing Subsidiary on account of the failure of or delay in performance or breach by 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 any other Lender or ~~such Issuing Bank unless~~ the ~~Administrative Agent shall have received notice to the contrary from such Lender~~ Company, MJC or ~~such Issuing Bank prior to the making~~ any Borrowing Subsidiary of ~~such Loan~~ any of their respective obligations hereunder or ~~the issuance of such Letter of Credit~~in connection herewith. The Administrative Agent may ~~consult with~~ execute any and all duties hereunder by or through its Affiliates, 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 them in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment Lenders hereby acknowledge that the Administrative Agent ~~acted with gross negligence or wilful misconduct~~ shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the ~~selection of such sub-agents~~Required Lenders. Subject to the ~~terms~~ appointment and acceptance of ~~this paragraph~~a successor Administrative Agent as provided below, the Administrative Agent may resign at any time ~~from its capacity as such~~by notifying the Lenders and the Company. ~~In connection with~~ Upon any such ~~resignation,~~ resignation of the Administrative ~~Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks and the Borrower. Upon receipt of any such notice of resignation~~Agent, the Required Lenders shall have the ~~right, with the consent of the Borrower (which shall not be unreasonably withheld or delayed),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such 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 and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 8.5 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, or Letters of Credit issued or participated in 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 an Administrative Agent, and the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in ~~respect~~ any kind of business with the ~~matters referred to in~~ Company or any Subsidiary or other Affiliate thereof as if it were not the ~~proviso under clause (a) above~~Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agent, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and ~~each Issuing Bank~~ compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Company 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 either of them in its capacity as an Administrative Agent 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 Company; 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 that it has, independently and without reliance upon ~~the~~ any Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon ~~the~~ any Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure.

Appears in 2 contracts

Sources: Five Year Revolving Credit Facility Agreement (Mead Johnson Nutrition Co), Revolving Credit Facility Agreement (Mead Johnson Nutrition Co)

The Administrative Agent. Each of the Lenders (in its capacities as a Lender, a potential Hedge Bank and a potential Bilateral LC Provider), the Swingline Lender and each of the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and~~ as its ~~successors to serve as 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 of hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~Except, to in each case, as set forth in the ~~extent required under~~ sixth paragraph of this Article, the ~~laws~~ provisions of ~~any jurisdiction other than~~ this Article are solely for the ~~United States~~ benefit of ~~America, each of the Lenders and the Issuing Banks hereby grants to~~ the Administrative Agent and the Lenders, and no Borrower shall have rights as a third-party beneficiary of any ~~required powers of attorney to execute any Security Document governed by the laws~~ of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting partiesprovisions. 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~~Agent and the term “Lender” or “Lenders” shall, ~~and such~~ 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, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings, the~~ any Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks~~Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in Section 9.2 or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any 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 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 ~~Holdings, the Borrower,~~ any ~~Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.2) or (ii) in the absence of its own gross ~~negligence~~ negligence, bad faith or ~~wilful~~ willful misconduct (~~such absence to be presumed unless otherwise~~ as determined by a court of competent jurisdiction by in a final and ~~nonappealable judgment~~non-appealable decision). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Lead Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement or any other Loan Document~~ herein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. 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~~Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender ~~or such Issuing Bank~~ unless the Administrative Agent shall have received notice to the contrary from such Lender ~~or such Issuing Bank~~ prior to the making of such ~~Loan or the issuance of such Letter of Credit~~Loan. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of 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 of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, (a) the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give~~ by giving 15 Business Days’ prior written notice ~~of its intent to resign~~ to the Lenders, the Swingline Lender, the Issuing Banks and the ~~Borrower~~Lead Borrower and (b) the Lead Borrower may remove the Administrative Agent at any time on and after the date that the Administrative Agent or any of its direct or indirect parent companies satisfies any provision of clause (d) of the definition of “Defaulting Lender”, by giving written notice to the Administrative Agent, each Lender, the Swingline Lender and each Issuing Bank. Any such resignation or removal hereunder shall also constitute the Administrative Agent’s resignation or removal as an Issuing Bank and Swingline Lender, in which case the resigning or removed Administrative Agent shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder, and shall maintain all of its rights as an Issuing Bank or Swingline Lender, as the case may be (as a Defaulting Lender, in the case of its removal pursuant to clause (b) above), with respect to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such resignation. Upon ~~receipt~~ any such removal, the Lead Borrower shall have the right to appoint a successor Administrative Agent, which shall be a commercial bank having a combined capital and surplus of at least $200,000,000 with an office in New York, New York, or an Affiliate of any such ~~notice of~~ commercial bank with an office in New York, New York. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (~~Lead Borrower, to appoint a successor, which shall be a commercial bank having a combined capital and surplus of at least $200,000,000 with an office in New York, New York, or an Affiliate of any such commercial bank with an office in New York, New York; provided that, in the event that such successor or Administrative Agent appointed by the Required Lenders is not Citibank or any of its Affiliates, and so long as no Event of Default shall have occurred and be continuing, the Lead Borrower shall have the right to approve such successor Administrative Agent (such approval not to be unreasonably withheld or delayed). If, ~~to appoint a successor. If~~ following the resignation of the Administrative Agent, 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent~~Agent meeting the qualifications set forth above; provided that, ~~which~~ in the event that such successor Administrative Agent appointed by the resigning Administrative Agent is not Citibank or any of its Affiliates, and so long as no Event of Default shall have occurred and be ~~a bank with an office in New York~~continuing, ~~New York,~~ the Lead Borrower shall have the right to approve such successor Administrative Agent (such approval not to be unreasonably withheld or ~~an Affiliate of any such bank~~delayed). Upon the ~~acceptance~~ removal of ~~its appointment as~~ the Administrative Agent ~~hereunder~~ by the Lead Borrower as provided above, or upon the resignation effective date established in the Administrative Agent’s resignation notice and regardless of whether a ~~successor~~successor Administrative Agent has been appointed and accepted such appointment, ~~such successor shall succeed to and become vested with all~~ (i) the ~~rights, powers, privileges and duties of the~~ removed or retiring Administrative Agent, ’s resignation or removal shall nevertheless become effective and the removed or retiring Administrative Agent shall be discharged from its duties and obligations hereunder ~~and~~ or under the other Loan Documents (if not already discharged therefrom as provided above in this Article) and (ii) except for amount owed or otherwise payable from time to time to the retiring Administrative Agent under the Loan Documents, 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 and each Issuing Bank directly, until such time as a successor Administrative Agent is appointed in accordance with the terms of this paragraph. The fees payable by Holdings ~~and~~ or the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~by Holdings,~~ between the Lead Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. 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 removed, retiring or retired Administrative Agent. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan, any reimbursement obligation in respect of any LC Disbursement or any Cash Collateral Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on any Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (x) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the ~~matters referred~~ Loans, any reimbursement obligation in respect of any LC Disbursement, any Cash Collateral Obligation and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the ~~proviso~~ claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Issuing Banks and the Administrative Agent under ~~clause~~ Section 2.11 and 9.3) allowed in such judicial proceeding; and (ay) ~~above. Each~~ to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each Issuing Bank to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Bank, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Section 2.11 and 9.3. Each Lender acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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~~Anything herein to the contrary notwithstanding, ~~by delivering its signature page to this Agreement on~~ the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt ofArrangers, and ~~consented to and approved, this Agreement and~~ each ~~other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative~~ Syndication Agent or the Lenders on the Effective Date or the Funding Date. Except with respect to the 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 not 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 duties 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 responsibilities under this Agreement or any of the other Loan ~~Document~~ Documents, except in their respective capacities, as ~~expressly provided in~~ applicable, as the ~~Collateral Agreement~~Administrative Agent or a Lender hereunder. ~~By accepting the benefits of the Collateral,~~ The Lenders and each other Secured Party ~~that is~~ (by becoming a party to hereto or otherwise obtaining the benefit of any ~~such Hedging Agreement shall be deemed to have appointed~~ Guaranty or any Collateral) irrevocably authorize and direct the Administrative Agent to ~~serve~~ act as ~~administrative~~ agent with respect to the Collateral under each of the Collateral Documents and ~~collateral agent under~~ to enter into the Loan Documents relating to the Collateral for the benefit of the Lenders and ~~agreed~~ the other Secured Parties. Each Lender and each other Secured party (by becoming a party hereto or otherwise obtaining the benefit of any Guaranty or any Collateral) agrees that any action taken by the Administrative Agent, any Issuing Bank or the Required Lenders (or, where required by the express terms hereof, a different proportion of the Lenders) in accordance with the provisions hereof and of the other Loan Documents and the exercise by the Administrative Agent, any Issuing Bank or the Required Lenders (or, where required by the express terms hereof, a different proportion of the 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 and the other Secured Parties. Without limiting the generality of the foregoing, the Administrative Agent shall have the sole and exclusive right and authority to ~~be bound by~~ (i) act as the disbursing and collecting agent for the Secured Parties with respect to all payments and collections arising in connection herewith and with the Loan Documents ~~as a Secure~~relating to the Collateral; (ii) execute and deliver each Loan Document relating to the Collateral and accept delivery of each such agreement delivered by Holdings or any of its Subsidia

Appears in 2 contracts

Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)

The Administrative Agent. Each of the Lenders and ~~the~~ Issuing Banks hereby irrevocably appoints JPMCB as the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ (and ~~its successors to serve as administrative agent and collateral agent under the Loan Documents~~ 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 ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~Except, to in each case, as set forth in the ~~extent required under~~ sixth paragraph of this Article, the ~~laws~~ provisions of ~~any jurisdiction other than~~ this Article are solely for the ~~United States~~ benefit of ~~America, each of the Lenders and the Issuing Banks hereby grants to~~ the Administrative Agent and the Lenders, and no Loan Party shall have rights as a third party beneficiary of any ~~required powers of attorney to execute any Security Document governed by the laws~~ of such ~~jurisdiction on such~~ provisions. Each Lender’s , whether or ~~such Issuing Bank’s behalf. It is understood and agreed that the use~~ not a party hereto, will be deemed, by its acceptance of the ~~term “agent” (or any similar term) herein or in any other~~ benefits of the Guarantees of the Obligations provided under the Loan ~~Document with reference~~ Documents, to have agreed to the ~~Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine~~ provisions of ~~any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~this Article. 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~~Agent and the term “Lender” or “Lenders” shall, ~~and such~~ 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, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of banking, trust or other business with ~~Holdings, the Borrower~~ Parent or any Subsidiary of Parent or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in Section 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~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any 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 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.2) or (ii) in the absence of its own gross negligence or ~~wilful~~ willful misconduct (~~such absence to be presumed unless otherwise~~ as determined by a court of competent jurisdiction by in a final and ~~nonappealable judgment~~non-appealable decision). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement or any other Loan Document~~ herein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or 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 IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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,~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yieldreasonably assured to it. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. 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~~Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender ~~or such Issuing Bank~~ unless the Administrative Agent shall have received notice to the contrary from such Lender ~~or such Issuing Bank~~ prior to the making of such ~~Loan or the issuance of such Letter of Credit~~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 of 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 of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall ~~not be responsible for~~ have the ~~negligence or misconduct of any sub-agents except~~ right to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give~~ by giving prior written notice ~~of its intent to resign~~ thereof to the ~~Lenders, the Issuing Banks~~ 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 ~~receipt of~~ 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 (which shall not be unreasonably withheld or delayed)~~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 intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent. If neither the Required ▇▇▇▇▇▇▇ nor the Administrative Agent have appointed a successor Administrative Agent, ~~which~~ the Required ▇▇▇▇▇▇▇ shall be deemed to have succeeded to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent. Any successor Administrative Agent shall be a bank with an office in ~~New York, New York,~~ the United States or an Affiliate of any such ~~bank~~bank with an office in the United States. 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 and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After any 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 ~~from its capacity~~ hereunder as ~~such~~Administrative Agent, the provisions of this Article ~~and Section 9.03,~~ IX shall inure to its benefit 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 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 pursuant to this Article IX shall also constitute the resignation of JPMCB or its successor as Swing Line Lender and Issuing Bank, and any successor Administrative Agent appointed pursuant to this Section shall, upon its acceptance of such appointment, become successor Swing Line Lender and Issuing Bank for all purposes hereunder. In such event (i) the Borrower shall prepay any outstanding Swing Line Loans made by the retiring Administrative Agent in its capacity as Swing Line Lender, (ii) upon such prepayment, the retiring Administrative Agent and Swing Line Lender shall surrender any Swing Line Note held by it to the Borrower for cancellation, and (iii) the Borrower shall issue, if so requested by successor Administrative Agent and Swing Line Lender, a new Swing Line Note to the successor Administrative Agent and Swing Line Lender, in ~~respect~~ the principal amount of the ~~matters referred~~ Swing Line Sublimit then in effect and with other appropriate insertions. After such resignation of JPMCB as an Issuing Bank hereunder, JPMCB shall remain a party hereto to in the ~~proviso~~ 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 ~~clause (a) above~~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 and each Issuing Bank ~~acknowledges~~ 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 Loan Documents set forth the terms of a commercial 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 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, ~~the Arrangers~~ 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, ~~the Arrangers~~ 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. ~~Each Lender~~Anything herein to the contrary notwithstanding, ~~by delivering its signature page to~~ no Arranger shall have any powers, duties or responsibilities under this Agreement ~~on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption~~ or any of the other Loan ~~Document pursuant to which it shall become~~ Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder. Subject to Section 10.2, ~~shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to,~~ without further written consent or ~~be approved by or satisfactory to~~authorization from any Lender, the Administrative Agent may execute any documents or instruments necessary to release any Guarantor from the ~~Lenders on the Effective Date or the Funding Date. Except with respect~~ Guaranty pursuant to ~~the exercise of setoff rights of any Lender in accordance with~~ Section ~~9.08~~ 10.17 or with respect to ~~a Lender’s right~~ which Required Lenders (or such other Lenders as may be required to ~~file a proof~~ give such consent under Section 10.2) have otherwise consented. Anything contained in any of ~~claim in an insolvency proceeding~~the Loan Documents to the contrary notwithstanding, each Loan Party, the Administrative Agent and each Lender hereby agree that no ~~Secured Party~~ Lender shall have any right individually to ~~realize upon any of~~ enforce the ~~Collateral or to enforce any Guarantee of the Obligations~~Guaranty, it being understood and agreed that all powers, rights and remedies ~~under the Loan Documents~~ hereunder may be exercised solely by the Administrative ~~Agent~~ Agent, on behalf of the ~~Secured Parties~~ Lenders in accordance with the terms ~~thereof~~hereof. In Notwithstanding anything to the ~~event~~ 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 ~~foreclosure by~~ manner satisfactory to the ~~Administrative Agent on any~~ applicable Issuing Banks), upon request of the ~~Collateral pursuant to a public or private sale or other disposition~~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 ~~may be~~ (x) represents and warrants, as of the ~~purchaser or licensor of any or all of~~ date such ~~Collateral at any such sale or other disposition~~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, ~~as agent for~~ the Arrangers 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~~Affiliates, and not, for the ~~purpose~~ avoidance of ~~bidding and making settlement~~ doubt, to or ~~payment~~ for the benefit of the ~~purchase price for all~~ Borrower or any ~~portion~~ other Loan Party, that at least one of the ~~Collateral sold at any~~ following is and will be true: (i) such ~~public sale, to use and apply any~~ Lender is not using “plan assets” (within the meaning of the ~~Loan Document Obligations as a credit on account~~ Plan Asset Regulations) of ~~the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale~~ one or other disposition. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging Obligations will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights more Benefit Plans in connection with the ~~management~~ Loans, the Letters of Credit or ~~release of any Collateral or of~~ the obligations of any Loan Party under this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 SecureCom

Appears in 2 contracts

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

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ each assignee of any Lender hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (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 ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (~~Company or any ~~similar term) herein~~ other Borrower pursuant to this Agreement or ~~in any~~ the other Loan ~~Document with reference~~ Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent is in its individual capacity and not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ any of the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower, any Subsidiary or any other Affiliate of~~ any of the ~~foregoing~~ Borrowers or any of their Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ a Borrower (in which case the ~~Borrower, a Lender or an Issuing Bank~~Administrative Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative 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~~ agents, which may include any of its branches or affiliates, appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (~~which shall~~ not to be unreasonably ~~withheld~~ withheld, conditioned or ~~delayed~~delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. In addition, if the Administrative Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and the Administrative Agent, to remove the Administrative Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld, conditioned or delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. If (a) no successor to a retiring 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 notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such ~~bank~~bank or (b) no successor to a removed Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days following the issuance of a notice of removal, the removal shall become effective on such 30th day and on such date the Required Lenders shall succeed as Administrative Agent to such removed Administrative 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 or removed Administrative Agent, as the case may be, and ~~the~~ such retiring or removed Administrative Agent shall be discharged from its duties and obligations ~~hereunder and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity~~ or removal, as ~~such~~the case may be, hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 10.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, as the case may be. 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 and in respect of the matters referred to in the proviso under clause~~ Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of the Administrative Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ None of the Lenders identified on the facing page or signature ~~page to~~ pages of this Agreement ~~on the Effective Date and funding its Loans on the Funding Date~~or elsewhere herein as a “syndication agent” or “documentation agent” shall have any right, power, obligation, liability, responsibility or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, duty under this Agreement ~~and each~~ other ~~Loan Document and each other document required~~ than those applicable to ~~be delivered to, or be approved by or satisfactory to,~~ all Lenders as such. Each Lender hereby agrees that (x) if the Administrative Agent ~~or the Lenders on the Effective Date or the Funding Date. Except with respect to the exercise of setoff rights of any~~ notifies such 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 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~~ has determined in ~~accordance with the terms thereof. In the event of a foreclosure~~ its sole discretion that any funds received by ~~the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition,~~ such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender ~~may be~~ (whether or not known to such Lender), and demands the ~~purchaser or licensor of any or all~~ return of such ~~Collateral at any~~ Payment (or a portion thereof), such ~~sale~~ Lender shall promptly, but in no event later than one Business Day thereafter (or ~~other disposition, and~~ such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as ~~agent for~~ to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and ~~representative~~ including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the ~~Secured Parties~~ NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (~~but~~ y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender under this paragraph or ~~Lenders~~ the following paragraph shall be conclusive, absent manifest error. Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter (or such later date as the Administrative Agent, may, in its ~~or their respective individual capacities unless the Required Lenders shall otherwise agree~~ sole discretion, specify in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. Each Borrower hereby agrees that in the event an erroneous Payment (or portion thereof) is not recovered from any Lender that has received such erroneous Payment (or portion thereof) for any reason, (x) the Administrative Agent shall be ~~entitled~~subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by any Borrower, except, in each case, to the extent such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds received by the Administrative Agent from any Borrower for the purpose of ~~bidding and making settlement~~ satisfying Obligations. Each party’s obligations under the preceding three paragraphs shall survive the resignation or ~~payment~~ replacement 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~~ or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the ~~Secured Parties at such sale~~ Commitments or ~~other disposition~~the repayment, satisfaction or discharge of all Obligations under any Loan Document. ~~In furtherance~~ Each Lender (x) represents and warrants, as of the ~~foregoing~~ date such Person became a Lender party hereto, to, and ~~not in limitation thereof~~(y) covenants, ~~no Hedging Agreement~~ from the ~~obligations under which constitute Secured Hedging Obligations will create (or be deemed~~ date such Person became a Lender party hereto to ~~create) in favor of any Secured Party that is~~ the date such Person ceases being a Lender party ~~thereto any rights in connection with~~ hereto, for the ~~management or release of any Collateral or~~ benefit of the ~~obligations~~ Administrative Agent, the Arrangers and their respective Affiliates, and not, for the avoidance of ~~any Loan Party under this Agreement~~ doubt, to or for the benefit of the Company or any ~~other Loan Document except as expressly provided in the Collateral Agreement. By accepting the benefits~~ Subsidiary, that at least one of the ~~Collateral, each Secured Party that~~ following is ~~a party to any~~ and will be true: (i) such ~~Hedging Agreement shall be deemed to have appointed~~ Lender is not using “plan assets” (within 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 Secure~~meani

Appears in 2 contracts

Sources: 364 Day Credit Agreement (Automatic Data Processing Inc), Credit Agreement (Automatic Data Processing Inc)

Appears in 2 contracts

Sources: Senior Secured Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II), Senior Secured Credit Agreement (Blue Owl Technology Finance Corp. II)

The Administrative Agent. ~~Each~~ (a) By their acceptance of the ~~Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading~~ benefits of this ~~Agreement and its successors to serve as administrative agent and collateral agent under~~ Guaranty, the ~~Loan Documents and authorizes~~ Secured Creditors agree that this Guaranty may be enforced only by the action of the Administrative Agent ~~to take such actions and to exercise such powers as are delegated to~~ or the Administrative Agent by the terms 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 Collateral Agent, ~~and such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as~~ in each case acting upon the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request instructions of the Required Lenders (~~or such other number or percentage~~ or, after the date on which all Credit Document Obligations have been paid in full, the holders of at least a majority of the ~~Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents~~outstanding Other Obligations) ~~or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final~~ and ~~nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating~~ that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 or any no other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 Creditors shall have any right individually to ~~realize upon any of the Collateral~~ seek to enforce or to enforce ~~any Guarantee of~~ this Guaranty or to realize upon the ~~Obligations~~security to be granted by the Security Documents, it being understood and agreed that ~~all powers,~~ such rights and remedies ~~under the Loan Documents~~ may be exercised ~~solely~~ by the Administrative Agent ~~on behalf~~ or the Collateral Agent or, after all the Credit Document Obligations have been paid in full, by the holders of at least a majority of the outstanding Other Obligations, as the case may be, for the benefit of the Secured ~~Parties~~ Creditors upon the terms of this Guaranty. By their acceptance of the benefits of this Guaranty, the Secured Creditors further agree that this Guaranty may not be enforced against any director, officer, employee, partner, member or stockholder of INSW. (b) The Administrative Agent and Collateral Agent will hold in accordance with this Guaranty all collateral at any time received under this Guaranty. By its acceptance of the ~~terms thereof. In~~ benefits of this Guaranty, each Secured Creditor acknowledges and agrees that the ~~event~~ obligations of ~~a foreclosure by~~ the Administrative Agent ~~on any~~ and Collateral Agent as enforcer of this Guaranty and interests herein are only those expressly set forth in this Guaranty and in Section 10 of the ~~Collateral pursuant to a public or private sale or other disposition, the~~ Credit Agreement. 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~~ Collateral Agent shall act hereunder on the terms and ~~representative~~ conditions set forth herein and in Section 10 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Credit Agreement. 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 Secure.

Appears in 2 contracts

Sources: Holdings Guaranty Agreement (International Seaways, Inc.), Holdings Guaranty Agreement (International Seaways, Inc.)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to any Lender or Issuing Bank 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own fraud, gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non-appealable judgment that the Administrative Agent acted with fraud, gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent may resign ~~at any time from its capacity as such. In connection with such resignation, the Administrative Agent shall give~~ by providing not less than thirty (30) days advance written notice ~~of its intent to resign~~ to the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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 ~~intent to resign~~resignation, then the retiring Administrative Agent’s resignation shall nonetheless become effective at the end of such thirty (30) days period (except that in the case of any collateral security held by the Administrative Agent ~~may,~~ on behalf of the Lenders ~~and~~ or the Issuing ~~Banks~~Banks 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 (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 successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. Any resignation by Truist Bank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and ~~in respect~~ a Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. Each Lender ~~and each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant Documents to which it ~~shall become~~ is a ~~Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to,~~ party. Except as otherwise provided in Section 9.02(b) or ~~be approved by or satisfactory to~~the Security Documents, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the ~~Lenders on~~ Loan Documents, provided that, without the ~~Effective Date~~ prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the ~~Funding Date. Except~~ 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 ~~exercise~~ Collateral, 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 ~~setoff rights~~ either a disposition of property (including, without limitation, any ~~Lender~~ property subject to a participation or repurchase transaction) not prohibited 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) 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~~ 9.02(c) hereof and Section 10.03 of the ~~Collateral~~ Guarantee and Security Agreement and (3) spread Liens to any Designated Indebtedness or ~~to enforce any~~ Hedging Agreement Obligations (as such terms are defined in the 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~~ Security Agreement) 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, Guarantee 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Security Agreement. 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 Secure.

Appears in 2 contracts

Sources: Senior Secured Revolving Credit Agreement (Goldman Sachs Private Credit Corp.), Senior Secured Revolving Credit Agreement (Goldman Sachs Private Credit Corp.)

The Administrative Agent. Each of the Lenders and ~~the~~ Issuing ~~Banks~~ Lenders hereby irrevocably appoints ~~the entity named~~ Citibank, as Administrative Agent, to act on its behalf as the Administrative Agent ~~in the heading of this Agreement~~ hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof and thereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition,~~ Except with respect to the ~~extent required under the laws of any jurisdiction other than the United States of America, each~~ consent rights of the Company relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and the Issuing Lenders and the ~~Issuing Banks hereby grants to the Administrative Agent~~ Borrowers shall not have rights as a third party beneficiary of any ~~required powers of attorney to execute any Security Document governed by the laws~~ of such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf~~provisions. It is understood and agreed that the use of the term “agent” ~~(or any similar term)~~ herein or in any other Loan ~~Document~~ Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary ~~duty~~ or other implied (or express) obligations arising under agency doctrine of any applicable ~~law~~Law. ~~Instead,~~ Instead such term is used as a matter of market ~~custom~~ custom, and is intended to create or reflect only an administrative relationship between contracting parties. 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~~Agent and the term “Lender” or “Lenders” shall, ~~and such~~ 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, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Borrowers or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks~~Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. 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 to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Sections 7.02 and 9.02); , provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law~~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 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Company or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided in ~~the Loan Documents~~Sections 7.02 and 9.02) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct ~~(such absence to be presumed unless otherwise~~ as determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings~~the Company, ~~the~~ another Borrower, a Lender or an Issuing ~~Bank, and the~~ Lender. 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document~~ therein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be have been made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. 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 any Issuing ~~Bank~~Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing ~~Bank~~ Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing ~~Bank~~ Lender prior to the making of such Loan or the ~~issuance~~ issuance, extension, renewal or increase of such Letter of Credit. 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 of and all its duties and exercise its rights and powers hereunder or and under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ of its duties and exercise ~~their~~ its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non appealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing ~~Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (~~which shall~~ not to be 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 days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent ~~may~~may (but shall not be obligated to), on behalf of the Lenders and the Issuing ~~Banks~~Lenders, ~~appoint~~ appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, and with an office in Canada or an Affiliate of any such bank; provided that (x) in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Institution and (y) if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (b) except for any indemnity payments or other amounts then owed to the retiring 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 and each Issuing Lender directly until such time as the Required Lenders appoint, with the consent of the Company (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative ~~Agent~~Agent (other than as provided in Section 2.15(e) and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the resignation effective date), and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by ~~Holdings and~~ the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~by Holdings,~~ between the ~~Borrower~~ Company and such successor. ~~Notwithstanding~~ After 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 Agent’s 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 from its capacity as such, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 (i) it was acting as Administrative Agent and (ii) after such resignation 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 ~~matters referred~~ agency to any successor Administrative Agent. Any resignation by Citibank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. If Citibank resigns as an Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Lender and the LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in unreimbursed LC Disbursements pursuant to Section 2.04(e). Upon the ~~proviso under clause~~ appointment by the Company of a successor Issuing Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Lender, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Issuing Lender shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Citibank to effectively assume the obligations of Citibank with respect to such Letters of Credit. Each Lender and each Issuing ~~Bank~~ Lender acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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~~ Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any ~~of the~~ other their 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~~The Administrative Agent shall not be responsible or have any liability for, ~~by delivering its signature page~~ or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement on relating to Disqualified Institutions. Without limiting the ~~Effective Date and funding its Loans on~~ generality of the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toforegoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or ~~the Lenders on the Effective Date~~ inquire as to whether any Lender or ~~the Funding Date. Except~~ Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to ~~the exercise of setoff rights~~ or arising out of any ~~Lender in accordance with Section 9.08~~ assignment or ~~with respect~~ participation of Loans, or disclosure of confidential information, 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 Collateral or to enforce any Guarantee of the Obligations, it being understood and~~ Disqualified Institution. It is 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 dispositionSyndication Agent, 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,~~ Co-Documentation Agents and the ~~Administrative Agent~~Joint Lead Arrangers shall, in their capacities as ~~agent for and representative of the Secured Parties (but not any Lender~~ such, have no duties 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 responsibilities under this ~~Agreement or any other Loan Document except as expressly provided in the Collateral~~ Agreement. 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 Secure.

Appears in 2 contracts

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

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints ~~the entity named as Administrative Agent in the heading~~ The Royal Bank of ~~this Agreement~~ Scotland plc and its successors to serve as administrative agent and collateral agent under the Loan Documents (and The Royal Bank of Scotland plc hereby accepts such appointment) and authorizes the Administrative Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 such Issuing Bank’s behalf. Neither the Borrower nor any other Loan Party shall have rights as a third-party beneficiary of any such provisions. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include such Person in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, 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 Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~expressly provided for herein, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any 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 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, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful ~~misconduct (such~~ misconduct(such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and ~~nonappealable~~ non-appealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non-appealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign ~~at any time from its capacity as such. In connection with such resignation, the Administrative Agent shall give~~ upon 30 days notice of its intent to resign from its capacity as such to the Lenders, the Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, subject (unless an Event of Default under clauses (a), (b), (h) or (i) of Article VII with respect to the ~~consent of~~ Borrower shall have occurred and be continuing) to approval by the Borrower (which approval shall not be 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 days after the retiring Administrative Agent gives notice of its intent to ~~resign~~resign (the “Resignation Effective Date”), then the retiring Administrative Agent ~~may~~may (but shall not be obligated to), on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in ~~New York, New York,~~ the United States of America or an Affiliate of any such bank. Whether or not a successor Administrative Agent has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date. 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 (other than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring Administrative Agent shall be discharged from its duties and obligations 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 by Holdings, the Borrower and such successor. 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 (except for indemnity payments owed to the retiring Administrative Agent) 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 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent, ~~the Arrangers~~ 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, ~~the Arrangers~~ 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 ~~on the Effective Date~~ and funding its Loans on the ~~Funding~~ Effective Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding~~ Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Securepu

Appears in 1 contract

Sources: Credit Agreement (Crown Castle International Corp)

The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase Bank is hereby appointed to act as Administrative Agent on behalf of the Lenders, the Swing Line Banks, and the Fronting Banks. Each of the ~~Lenders~~ Lenders, the Swing Line Banks and the ~~Issuing Banks~~ Fronting Banks, and each assignee thereof, hereby irrevocably ~~appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ authorizes the Administrative Agent to take such actions on behalf of such Lender, the Swing Line Banks and such Fronting Bank and to exercise such powers as are specifically delegated to the Administrative Agent by the terms ~~of the Loan Documents~~and provisions hereof, 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the The Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as hereby expressly authorized by the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with HoldingsLenders, the ~~Borrower or~~ Swing Line Banks and the Fronting Banks, without hereby limiting any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoingimplied authority, (a) to receive on behalf of the Lenders, the Swing Line Banks and the Fronting Banks all payments of principal of and interest on the Loans, all reimbursements made with respect to L/C Disbursements and all other amounts due to the Lenders, the Swing Line Banks and the Fronting Banks hereunder, and promptly to distribute to each Lender, each Swing Line Bank and each Fronting Bank its proper share of each payment so received; (b) to give prompt notice on behalf of the Lenders, the Swing Line Banks and the Fronting Banks to the Borrowers 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 to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed actual knowledge acquired in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents)connection with its agency hereunder; 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 this Agreement or any other Loan Document or applicable law, and (c) ~~except~~ to distribute promptly to each Lender, each Swing Line Bank and each Fronting Bank copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Administrative Agent. Neither the Administrative Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable ~~for the failure~~ as such to ~~disclose~~any Lender, any ~~information relating to Holdings, the Borrower, any Subsidiary~~ Swing Line Bank or any ~~other Affiliate~~ Fronting Bank 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 to make any inquiry concerning the performance or observance by the Borrowers of any of the ~~foregoing that is communicated to~~ terms, conditions, covenants or ~~obtained by the Person serving as Administrative Agent or any of its Affiliates~~ agreements contained in any ~~capacity~~Loan Document. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given responsible to the ~~Administrative Agent by Holdings~~Lenders, the ~~Borrower, a Lender or an Issuing Bank,~~ Swing Line Banks and the ~~Administrative Agent shall not be responsible~~ Fronting Banks for ~~or have any duty to ascertain or inquire into~~ (i) ~~any statement~~the due execution, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiencygenuineness, validity, ~~enforceability,~~ enforceability or effectiveness ~~or genuineness~~ of this Agreement or any other Loan ~~Document~~ Documents or ~~any~~ other ~~agreement, instrument~~ instruments or ~~document~~ agreements or (vii) the satisfaction of any condition set forth in ~~Article IV or elsewhere in this Agreement or~~ any ~~other~~ Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction~~ Agent. The duties 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,~~ Agent shall be mechanical and administrative in nature; the Administrative Agent shall not ~~be liable for, or be responsible for any loss, cost or expense suffered~~ have by ~~the Borrower~~ reason of this Agreement or any ~~Lender as~~ other Loan Document a ~~result of~~fiduciary relationship in respect of any Lender, any ~~determination of the Revolving Exposure~~ Swing Line Bank or ~~the component amounts thereof or of the Weighted Average Yield~~any Fronting Bank. 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, the Lenders, the Swing Line Banks or any Fronting Bank, as the case may be, and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all of the Lenders, the Swing Line Banks and all of the Fronting Banks. The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to ~~rely, and shall not incur~~ rely on any ~~liability for relying, upon any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing (including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and correct and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~Person (whether~~ person or ~~not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof)~~persons. The Administrative Agent may also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ rely upon any statement made to it orally or by telephone and believed ~~by it~~ to be made by the proper ~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. 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, Neither the Administrative Agent ~~may presume that such condition is satisfactory to such Lender~~ nor any of its directors, officers, employees or ~~such Issuing Bank unless the Administrative Agent~~ agents shall have ~~received notice~~ any responsibility to the ~~contrary from such Lender~~ Borrowers on account of the failure of or ~~such Issuing~~ delay in performance or breach by any Lender, any Swing Line Bank ~~prior~~ or any Fronting Bank of any of its obligations hereunder or to any Lender, any Swing Line Bank or any Fronting Bank on account of the ~~making~~ failure of ~~such Loan~~ or delay in performance or breach by any other Lender, any Swing Line Bank, any Fronting Bank or the ~~issuance~~ Borrowers of ~~such Letter~~ any of ~~Credit~~their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The foregoing shall not limit the obligations of JPMorgan Chase Bank (or its successors and assigns) in its capacity as Lender hereunder. 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~~ a 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 of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article VIII shall apply to any such ~~sub-~~agent ~~and to the Related Parties of the Administrative Agent and any such sub-agent~~ or employee, 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. The Administrative Agent shall not ~~be responsible for~~ have any duties or obligations except those expressly set forth herein. Without limiting the ~~negligence or misconduct~~ generality of ~~any sub-agents except to~~ the ~~extent~~ foregoing, the Lenders, the Swing Line Banks and the Fronting Banks hereby acknowledge that ~~a court of competent jurisdiction determines in a final and nonappealable judgment that~~ (a) the Administrative Agent ~~acted with gross negligence~~ shall not be subject to any fiduciary or ~~wilful misconduct~~ other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing, (b) the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the ~~selection~~ Required Lenders, the Lenders, the Swing Line Banks or any Fronting Bank, as the case may be, 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 Borrowers or any of ~~such sub-agents~~their respective Subsidiaries that is communicated to or obtained by the Administrative Agent or any of its Affiliates in any capacity. Subject to the ~~terms~~ appointment and acceptance of ~~this paragraph~~a successor Administrative Agent as provided below, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the ~~Issuing~~ Swing Line Banks, the Fronting Banks and the ~~Borrower~~Borrowers. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the ~~right, with the consent of the Borrower (which shall not be unreasonably withheld or delayed),~~ right 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders~~ Lenders, the Swing Line Banks and the ~~Issuing~~ Fronting Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such 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 and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After 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 's resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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, 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 ~~respect~~ any kind of business with the Borrowers or any of their respective Subsidiaries or other Affiliate thereof as if it were not the Administrative Agent. Each of the ~~matters referred~~ Lenders, the Swing Line Banks and each of the Fronting Banks agrees (i) to reimburse the Administrative Agent, on demand, in the ~~proviso~~ amount of its pro rata share (based on its Commitment hereunder) of any expenses incurred for the benefit of the Lenders, the Swing Line Banks and the Fronting Banks by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, the Swing Line Banks and the Fronting Banks, which shall not have been reimbursed by the Borrowers 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 losses, claims, damages, liabilities and related expenses of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as the Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under ~~clause (a) above~~this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender, nor any Swing Line Bank nor any Fronting Bank shall be liable to the Administrative Agent for any portion of such losses, claims, damages, liabilities and related expenses resulting from the gross negligence or willful misconduct of the Administrative Agent or any of its directors, officers, employees, or agents. Each ~~Lender~~ of the Lenders, the Swing Line Banks and each ~~Issuing Bank~~ of the Fronting Banks acknowledges that it has, independently and without reliance upon the Administrative Agent, ~~the Arrangers~~ any other Lender, any Swing Line Bank or any ~~other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing,~~ Fronting Bank 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~~ of the Lenders, the Swing Line Banks and each ~~Issuing~~ Fronting Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, ~~the Arrangers~~ any other Lender, any Swing Line Bank or any ~~other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing,~~ Fronting Bank 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 other Loan ~~Document or~~ Document, any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure.

Appears in 1 contract

Sources: Credit Facility Agreement (Weyerhaeuser Co)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent and the Sustainability Agents shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. Without limiting the generality of the foregoing, (a) each of the Administrative Agent and each Sustainability Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) each of the Administrative Agent and each Sustainability Agent shall not have any duty to take any discretionary action or to exercise any [[60731336359722]] discretionary ~~power~~powers, ~~except~~ except, in the case of the Administrative Agent, discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court~~ willful misconduct. Each of ~~competent jurisdiction by a final~~ the Administrative Agent and ~~nonappealable judgment). The Administrative~~ each Sustainability Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to such agent by the Borrower or a Lender, and each of the Administrative Agent ~~by Holdings, the Borrower, a Lender or an Issuing Bank,~~ and ~~the Administrative~~ each Sustainability Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or ~~satisfaction~~ a Sustainability Agent, as applicable. Each 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative and each Sustainability Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~Person (whether or not such Person in fact meets~~ Person. Each of the ~~requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The~~ Administrative Agent and each Sustainability Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt~~ liability for relying thereon. Each 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative and each Sustainability 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 (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure.

Appears in 1 contract

Sources: Senior Secured Credit Agreement (Blackstone Private Credit Fund)

The Administrative Agent. ~~Each~~ In order to expedite the transactions contemplated by this Agreement and the other Loan Papers, NationsBank is hereby appointed to act as Administrative Agent on behalf of the Lenders and the Issuing ~~Banks~~ Bank. Each of the Lenders and each assignee of any such Lender, hereby irrevocably ~~appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Administrative Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders and the Issuing Bank, without hereby limiting any implied authority, (a) to ~~the extent required under the laws of any jurisdiction other than the United States of America, each~~ receive on behalf of the Lenders and the Issuing ~~Banks hereby grants~~ Bank all payments of principal of and interest on the Loans and Competitive Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or the Issuing Bank 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 and the other Loan Papers of which 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or has actual knowledge acquired in ~~any other Loan Document~~ connection with ~~reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under~~ its agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, 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 Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents)hereunder; 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 this Agreement or any other Loan Document or applicable law, 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 and the other Loan Papers as ~~expressly set forth in~~ received by the ~~Loan Documents,~~ Administrative Agent. Neither the Administrative Agent nor any of its directors, officers, employees or agents shall ~~not have any duty to disclose, and shall not~~ be liable as such for any action taken or omitted by any of them except for its or his own gross negligence or wilful misconduct, or be responsible for any statement, warranty or representation herein or the ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose,~~ ascertain or to make any ~~information relating to Holdings,~~ inquiry concerning the ~~Borrower, any Subsidiary~~ performance or ~~any other Affiliate~~ observance by the Borrower of any of the ~~foregoing that is communicated to~~ terms, conditions, covenants or ~~obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity~~agreements contained herein. The Administrative Agent shall not be ~~liable~~ responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement, the other Loan Papers or any ~~action taken~~ other instruments or ~~not taken~~ agreements. The Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary, or as~~ binding on all the Lenders. The Administrative Agent ~~shall believe~~ shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final genuine and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine correct and to have been signed or sent ~~or otherwise authenticated~~ by the proper 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)~~Persons. The Administrative Agent also 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 (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 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, Neither the Administrative Agent ~~may presume that such condition is satisfactory~~ nor any of its directors, officers, employees or agents shall have any responsibility to ~~such~~ the Borrower on account of the failure of or delay in performance or breach by any Lender or ~~such~~ the Issuing Bank ~~unless the Administrative Agent shall have received notice~~ of any of its obligations hereunder or to ~~the contrary from such~~ any Lender or ~~such~~ the Issuing Bank ~~prior to~~ on account of the ~~making~~ failure of ~~such Loan~~ or delay in performance or breach by any other Lender or the ~~issuance~~ issuing Bank or the Borrower of ~~such Letter~~ any of ~~Credit~~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 of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment Lenders hereby acknowledge that the Administrative Agent ~~acted with gross negligence~~ shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement or ~~wilful misconduct~~ any other Loan Paper unless it shall be requested in writing to do so by the ~~selection of such sub-agents~~Required Lenders. Subject to the ~~terms~~ appointment and acceptance of ~~this paragraph~~a successor Administrative Agent as provided below, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the Borrower, and may be removed at any time with or without cause by the action of all Lenders (other than Administrative Lender, if it is a Lender). Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the ~~right, with the consent of the Borrower (which shall not be unreasonably withheld or delayed),~~ right 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank ~~with an office in New York, New York,~~ having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such 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 and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After 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 's resignation 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 from its capacity as suchremoval hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 9.05 hereof 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 or Competitive 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 (subject to Section 2.03(f)) 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 ~~respect~~ any kind of business with the Borrower or any Subsidiary of the ~~matters referred to in the proviso under clause~~ Borrower or other Affiliate thereof as if it were not Administrative Agent. (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on its Pro Rata Percentage of the Commitment hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, 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 other Loan Paper, or any action taken or omitted by it or any of them under this Agreement or any other Loan Paper, 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 are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative 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~~Agreement and the other Loan Papers. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and the other Loan ~~Document~~ Papers, 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure.

Appears in 1 contract

Sources: Credit Agreement (Ascent Entertainment Group Inc)

The Administrative Agent. Each of the Lenders and the Issuing ~~Banks~~ Lender hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition, to~~ The Administrative Agent shall also act as the ~~extent required~~ “collateral agent” under the ~~laws of any jurisdiction other than the United States of America~~Loan Documents, and each of the Lenders (in its capacities as a Lender) hereby irrevocably appoints and ~~the Issuing Banks hereby grants to~~ authorizes the Administrative Agent to act as the agent of (and to hold any ~~required powers of attorney to execute any Security Document governed~~ security interest created by the ~~laws~~ Security Documents for and on behalf of or on trust for) such ~~jurisdiction~~ Lender for purposes of acquiring, holding and enforcing any and all Liens on ~~such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use~~ Collateral granted by any of the ~~term~~ Obligors to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” (or and any ~~similar term) herein or in any other Loan Document with reference to~~ co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent ~~is not intended~~ pursuant to ~~connote~~ this Article for purposes of holding or enforcing any ~~fiduciary duty or other implied~~ Lien on the Collateral (or ~~express~~any portion thereof) ~~obligations arising~~ granted under ~~agency doctrine~~ 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 including Section 10.03, 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. Without limiting any other provision of this Article, each Lender hereby authorizes the Administrative Agent to enter into (and/or agree to any amendments to) from time to time (i) any Security Documents and (ii) intercreditor (including subordination) arrangements on behalf of the Lenders in respect of any ~~applicable law. Instead~~Other Debt or Additional Permitted Indebtedness to the extent permitted or contemplated hereunder, ~~such term is used~~ in each case as ~~a matter of market custom~~ the Administrative Agent shall determine to be appropriate and ~~is intended to create or reflect only an administrative relationship between contracting parties~~consistent with the provisions hereof. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrower~~an Obligor), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing ~~Banks~~ Lender 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 ~~(which~~ so long as no Default shall ~~not be unreasonably withheld or delayed)~~exist, 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing ~~Banks~~Lender, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with a minimum capital and surplus of $500,000,000 and with an office in 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 and under the other Loan Documents~~hereunder. 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Except as otherwise provided in Section 10.02(b) with respect to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toAgreement, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or the Lenders on the Effective Date or the Funding Date. Except with respect to the 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 waiver under any of the ~~Collateral~~ Loan Documents, provided that, without the prior consent of each Lender, the Administrative Agent shall not (except as provided herein or ~~to enforce any Guarantee~~ in the Security Documents) release all or substantially all of the ~~Obligations, it being understood and agreed that all powers, rights and remedies~~ collateral or terminate any Lien with respect thereto under the ~~Loan~~ Security Agreement, except that no such consent shall be required, and the Administrative Agent is hereby authorized, to release any Lien covering property that is the subject of either a Disposition of property permitted hereunder or a Disposition to which the Required Lenders have consented. Notwithstanding anything to the contrary contained herein, the Security Documents executed by the Obligors in connection with this Agreement may be ~~exercised solely~~ in a form reasonably determined by the Administrative Agent ~~on behalf of the Secured Parties in accordance~~ and may be amended and waived with the ~~terms thereof. In the event~~ consent of ~~a foreclosure by~~ the Administrative Agent ~~on any~~ at the request of the ~~Collateral pursuant~~ Borrower without the need to ~~a public~~ obtain the consent of any Lender if such amendment or ~~private sale~~ waiver is delivered in order (i) to comply with applicable local law, rule or regulation or advice of local counsel, (ii) to cure ambiguities, defects or manifest errors, (iii) to cause any such Security Documents to be consistent with this Agreement and the other Loan Documents and/or (iv) to give effect to the changes to any Security Document required by any Intercreditor Agreement. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other ~~disposition~~judicial proceeding relative to any Obligor, the Administrative Agent ~~or any Lender may be~~ (irrespective of whether the ~~purchaser or licensor~~ principal of any Loan shall then be due and payable as herein expressed or ~~all~~ by declaration or otherwise and irrespective of ~~such Collateral at any such sale or other disposition, and~~ whether the Administrative ~~Agent, as agent for and representative of~~ Agent shall have made any demand on 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~~Borrower) shall be ~~entitled~~entitled and empowered, by intervention in such proceeding or otherwise (a) to file and prove a claim for the ~~purpose of bidding and making settlement or payment~~ whole amount of the ~~purchase price for all or any portion~~ principal and interest owing and unpaid in respect of the ~~Collateral sold at any~~ Loans and all other Obligations that are owing and unpaid and to file such ~~public sale,~~ other documents as may be necessary or advisable in order to ~~use and apply any~~ have the claims 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. In furtherance of the foregoing Lenders and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Securethe

Appears in 1 contract

Sources: Credit Agreement (Sinclair Broadcast Group Inc)

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement ~~and its successors~~ is hereby appointed to ~~serve~~ act as ~~administrative agent and collateral agent under~~ Administrative Agent on behalf of the ~~Loan Documents and~~ Lenders. Each of the Lenders, including each assignee of any Lender, hereby irrevocably authorizes the ~~Administrative~~ Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the ~~Administrative~~ Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other amounts due to the ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s~~ Company or ~~such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in~~ any other Loan ~~Document with reference~~ Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, the Administrative Agent is ~~not intended~~ hereby expressly authorized to ~~connote~~ release any ~~fiduciary duty~~ Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person other ~~implied (~~than the Company or ~~express) obligations arising under agency doctrine~~ an Affiliate of ~~any applicable law~~the Company in a transaction permitted by Section 6.04. ~~Instead~~With respect to the Loans made by it hereunder, ~~such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as~~ the Administrative Agent ~~hereunder~~ in its individual capacity and not as Administrative Agent shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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~~ no duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall ~~not~~ have ~~any~~ no duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Company or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or wilful ~~misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower, a Lender or an Issuing Bank~~Company (in which case the Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability 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 of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders 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 (which shall not be unreasonably withheld or delayed)~~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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in 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 and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After 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 's resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause~~ Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Loan Party and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Loan Party; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure.

Appears in 1 contract

Sources: 364 Day Credit Agreement (Edwards Lifesciences Corp)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and authorizes the Administrative Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. Without limiting the generality of the foregoing, the Lenders and the Issuing Banks hereby expressly authorize the Administrative Agent to execute any and all documents (including releases and intercreditor agreements) with respect to the Collateral (including any amendment, supplement, modification or joinder with respect thereto) and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents and acknowledge and agree that any such action by the Administrative Agent shall bind the Lenders. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, 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 Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure.

Appears in 1 contract

Sources: Amendment No. 3 to the Second Amended and Restated Credit Agreement (Chemours Co)

The Administrative Agent. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably appoints ~~the entity named~~ Barclays Bank PLC (or any successor appointed pursuant hereto) as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors to serve as administrative~~ agent ~~and collateral agent under the Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Any 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~~Agent and the term “Lender” or “Lenders” shall, ~~and~~ unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder~~ hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and ~~without~~ acknowledge that the Administrative Agent shall not be under any ~~duty~~ obligation to ~~account therefor~~ provide such information to ~~the Lenders or the Issuing Banks~~them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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~~continuing and without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law and instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers that are expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law~~laws, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower,~~ any ~~Subsidiary~~ Loan Party or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct ~~(such absence to be presumed unless otherwise~~ as determined by the final judgment of a court of competent ~~jurisdiction by a final and nonappealable 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 ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower, a Lender~~ Borrower or ~~an Issuing Bank~~any Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default or Event of Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document or~~ document, (v) the creation, perfection or priority of Liens on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere in ~~this Agreement or~~ any ~~other~~ Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or ~~satisfaction~~ (vii) the properties, books or records of any ~~condition that expressly refers to~~ Loan Party or any Affiliate thereof. If any Lender acquires knowledge of a Default or Event of Default, it shall promptly notify the ~~matters described therein being acceptable or satisfactory to~~ Administrative Agent and the other Lenders thereof in writing. Each Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable law or otherwise to credit bid at foreclosure sales, UCC sales, any sale under Section 363 of the Bankruptcy Code or other similar Dispositions of Collateral. Notwithstanding the foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of proofs of claim in a case under the Bankruptcy Code. Notwithstanding anything ~~herein~~ to the ~~contrary~~contrary contained herein or in any of the other Loan Documents, the Loan Parties, the Administrative Agent and each Secured Party agrees that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Guaranty, it being understood 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 Loan 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 Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such Disposition, 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 Lender may be the purchaser or licensor of any or all of such Collateral at any such Disposition. No holder of Secured Hedging Obligations or Banking Services Obligations shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Guarantor under this Agreement. Each of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to Secured Hedging Obligations and/or by entering into documentation in connection with Banking Services Obligations, 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 Lenders: (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 such Disposition or other transfer 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 Lender or other Secured Party; it being understood that no Lender shall be required to fund any amounts in connection with any purchase of all or any portion of the Collateral by the Administrative Agent pursuant to the foregoing clauses (b), (c) or (d) without its prior written consent. Each Lender and each other 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 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) shall be entitled to be, and shall be, credit bid by the Administrative Agent 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 of any such claim for purposes of the credit bid or purchase so long as the fixing or liquidation of such claim would not unduly delay the ability of the Administrative Agent to credit bid the Secured Obligations or purchase the Collateral at such Disposition. In the event that the Administrative Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot be estimated without unduly delaying the ability of the Administrative Agent to credit bid or purchase in accordance with the second preceding paragraph, then those of the contingent or unliquidated claims not so estimated shall be disregarded, shall not be ~~liable for~~credit bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral purchased by means of such credit bid. Each Secured Party whose Secured Obligations are credit bid under clauses (b), (c) or (d) of the third preceding paragraph shall be ~~responsible for~~ entitled to receive interests in the Collateral or other asset or assets 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 percentage obtained by dividing (x) the amount of the Secured Obligations of such Secured Party that were credit bid in such credit bid or Disposition, by (y) the aggregate amount of all Secured Obligations that were credit bid in such credit bid or Disposition. In addition, in case of the pendency of any ~~loss, cost or expense suffered by the Borrower~~ proceeding under any Debtor Relief Law or any ~~Lender~~ other judicial proceeding relative to any Loan Party, each Secured Party agrees that the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise: (a) to file and prove a ~~result of, any determination~~ claim for the whole amount of the ~~Revolving Exposure~~ principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts to the extent due to the Lenders and the Administrative Agent under Sections 2.11 and 9.03) allowed in such judicial proceeding; (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and (c) to receive payments from any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amount to the extent due to the Administrative Agent under Sections 2.11 and 9.03. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the ~~component amounts thereof~~ rights of any Lender or to authorize the Administrative Agent to vote in respect of the ~~Weighted Average Yield~~claim of any Lender in any such proceeding. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled~~ may rely upon any statement made to ~~rely~~it orally and believed by it to have been made by the proper Person, 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 (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 may act upon any such statement prior to receipt of written confirmation thereofrelying thereon. 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,~~ Loan that by its terms must be fulfilled to the satisfaction of a ~~Lender or an Issuing Bank~~Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender ~~or such Issuing Bank~~ unless the Administrative Agent shall have received notice to the contrary from such Lender ~~or such Issuing Bank~~ prior to the making of such ~~Loan or the issuance of such Letter of Credit~~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 of 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 of and all ~~their~~ of its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secureactiv

Appears in 1 contract

Sources: First Lien Term Loan Agreement (Interline Brands, Inc./De)

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ each assignee of any Lender hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (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 ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (~~Company or any ~~similar term) herein~~ other Borrower pursuant to this Agreement or ~~in any~~ the other Loan ~~Document with reference~~ Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent is in its individual capacity and not ~~intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used~~ as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the~~ Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ any of the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower, any Subsidiary or any other Affiliate of~~ any of the ~~foregoing~~ Borrowers or any of their Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ a Borrower (in which case the ~~Borrower, a Lender or an Issuing Bank~~Administrative Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (~~which shall~~ not to be unreasonably ~~withheld~~ withheld, conditioned or ~~delayed~~delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. In addition, if the Administrative Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and such Administrative Agent, to remove such Administrative Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld, conditioned or delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. If (a) no successor to a retiring 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 notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such ~~bank~~bank or (b) no successor to a removed Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days following the issuance of a notice of removal, the removal shall become effective on such 30th day and on such date the Required Lenders shall succeed as Administrative Agent to such removed Administrative 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 or removed Administrative Agent, as the case may be, and ~~the~~ such retiring or removed Administrative Agent shall be discharged from its duties and obligations ~~hereunder and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity~~ or removal, as ~~such~~the case may be, hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 10.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, as the case may be. 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 and in respect of the matters referred to in the proviso under clause~~ Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of the Administrative Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ None of the Lenders identified on the facing page or signature ~~page to~~ pages of this Agreement ~~on the Effective Date and funding its Loans on the Funding Date~~or elsewhere herein as a “syndication agent”, “documentation agent” or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 “managing agent” shall have any ~~right individually to realize upon any of the Collateral~~ right, power, obligation, liability, responsibility 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 duty under this Agreement ~~or any~~ other ~~Loan Document except~~ than those applicable to all Lenders as expressly provided in the Collateral Agreement. 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 Securesuch.

Appears in 1 contract

Sources: 364 Day Credit Agreement (Automatic Data Processing Inc)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to any Lender or Issuing Bank 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own fraud, gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non-appealable judgment that the Administrative Agent acted with fraud, gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent may resign ~~at any time from its capacity as such. In connection with such resignation, the Administrative Agent shall give~~ by providing not less than thirty (30) days advance written notice ~~of its intent to resign~~ to the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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 ~~intent to resign~~resignation, then the retiring Administrative Agent’s resignation shall nonetheless become effective at the end of such thirty (30) days period (except that in the case of any collateral security held by the Administrative Agent ~~may,~~ on behalf of the Lenders ~~and~~ or the Issuing ~~Banks~~Banks 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 (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 successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. Any resignation by Truist Bank as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and ~~in respect~~ a Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. Each Lender ~~and each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant Documents to which it ~~shall become~~ is a ~~Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to,~~ party. Except as otherwise provided in Section 9.02(b) or ~~be approved by or satisfactory to~~the Security Documents, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the ~~Lenders on~~ Loan Documents, provided that, without the ~~Effective Date~~ prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the ~~Funding Date. Except~~ 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 ~~exercise~~ Collateral, 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 ~~setoff rights~~ either a disposition of property (including, without limitation, any ~~Lender~~ property subject to a participation or repurchase transaction) not prohibited 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) 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~~ 9.02(c) hereof and Section 10.03 of the ~~Collateral~~ Guarantee and Security Agreement and (3) spread Liens to any Designated Indebtedness or ~~to enforce any~~ Hedging Agreement Obligations (as such terms are defined in the 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~~ Security Agreement) 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, Guarantee 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Security Agreement. 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 Secure.

Appears in 1 contract

Sources: Senior Secured Revolving Credit Agreement (Goldman Sachs Private Credit Corp.)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non-appealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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 ~~intent to resign~~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 ~~and~~ or the Issuing ~~Banks~~Banks 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 (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 successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. Any resignation by Sumitomo Mitsui Banking Corporation as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and ~~in respect~~ a Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. Each Lender ~~and each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant Documents to which it ~~shall become~~ is a ~~Lender hereunder, shall be deemed~~ party. Except as otherwise provided in Section 9.02(b) with respect to ~~have acknowledged receipt of, and consented to and approved,~~ this ~~Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~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 ~~Lenders on~~ Loan Documents, provided that, without the ~~Effective Date~~ prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the ~~Funding Date. Except~~ 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 ~~exercise~~ Collateral, 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 ~~setoff rights~~ either a disposition of property not prohibited hereunder or a disposition to which the Required Lenders have consented, (2) release from any ~~Lender~~ Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) in accordance with Section ~~9.08~~ 9.02(c) and (3) spread Liens to any Designated Indebtedness or ~~with respect to a Lender’s right to file a proof of claim~~ Hedging Agreement Obligations (as such terms are defined in ~~an insolvency proceeding, 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~~ Security Agreement) 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, Guarantee 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Security Agreement. 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 Secure.

Appears in 1 contract

Sources: Senior Secured Credit Agreement (Owl Rock Technology Income Corp.)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non-appealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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 ~~intent to resign~~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 ~~and~~ or the Issuing ~~Banks~~Banks 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 (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 successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. Any resignation by SMBC as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and ~~in respect~~ a Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. Each Lender ~~and each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant Documents to which it ~~shall become~~ is a ~~Lender hereunder, shall be deemed~~ party. Except as otherwise provided in Section 9.02(b) with respect to ~~have acknowledged receipt of, and consented to and approved,~~ this ~~Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~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 ~~Lenders on~~ Loan Documents, provided that, without the ~~Effective Date~~ prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the ~~Funding Date. Except~~ 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 (excluding (x) any increase in the Loans and Letters of Credit hereunder pursuant to a Commitment Increase under Section 2.08(e), (y) any increase in any Other Secured Indebtedness or Shorter Term Secured Indebtedness permitted hereunder and (z) the spreading of such Liens to any Designated Indebtedness or Hedging Agreement Obligations (as defined in the Guarantee and Security Agreement) as provided for in the Guarantee and Security Agreement), 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 ~~exercise of setoff rights of~~ Collateral, except that no such consent shall be required, and the Administrative Agent is hereby authorized (and so agrees with the Borrower), to direct the Collateral Agent under the Guarantee and Security Agreement, to (1) release any ~~Lender~~ Lien covering property 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 Collateral or to enforce~~ 9.02(c) hereof and (2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property 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~~ such Subsidiary Guarantor) in accordance with ~~the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant~~ Section 9.02(c) and (3) deliver such documents to ~~a public or private sale or other disposition~~evidence such releases in accordance with Section 9.02(c) hereof, 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. In furtherance each case of the foregoing clauses (1) through (3), (A) if no Designated Indebtedness is outstanding as of such time, automatically and ~~not in limitation thereof~~with no further action from any other party and (B) otherwise, ~~no Hedging Agreement the obligations~~ subject to any applicable requirements under which constitute Secured Hedging 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 Section 10.03 of the ~~obligations of any Loan Party under this Agreement or any other Loan Document except as expressly provided in the Collateral~~ Guarantee and Security Agreement. 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 Secure.

Appears in 1 contract

Sources: Senior Secured Credit Agreement (Lord Abbett Private Credit Fund)

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ each assignee of any Lender hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (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 ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (~~Company or any ~~similar term) herein~~ other Borrower pursuant to this Agreement or ~~in any~~ the other Loan ~~Document with reference~~ Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent is in its individual capacity and not ~~intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used~~ as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the~~ Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ any of the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower, any Subsidiary or any other Affiliate of~~ any of the ~~foregoing~~ Borrowers or any of their Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ a Borrower (in which case the ~~Borrower, a Lender or an Issuing Bank~~Administrative Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower (which shall not be unreasonably withheld or delayed)~~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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in 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 and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After 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 's resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause~~ Agent. (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of the Administrative Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ None of the Lenders identified on the facing page or signature ~~page to~~ pages of this Agreement ~~on the Effective Date and funding its Loans on the Funding Date,~~ or ~~delivering its signature page to an Assignment and Assumption~~ elsewhere herein as a "syndication agent" or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 "documentation agent" shall have any ~~right individually to realize upon any of the Collateral~~ right, power, obligation, liability, responsibility 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 duty under this Agreement ~~or any~~ other ~~Loan Document except~~ than those applicable to all Lenders as expressly provided in the Collateral Agreement. 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 Securesuch.

Appears in 1 contract

Sources: 364 Day Credit Agreement (Automatic Data Processing Inc)

The Administrative Agent. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and~~ as its ~~successors to serve as 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 of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Required Lenders, with the consent of the Borrower (provided that such consent shall not be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII shall have occurred and is continuing), or the Borrower, with the consent of the Required Lenders, may at any time replace the Administrative Agent (it being understood that any such replacement Administrative Agent shall be a Person that serves as administrative agent for other credit facilities of a comparable size), provided that the Required Lenders or the Borrower may not replace the Administrative Agent unless, after giving effect to such replacement and each contemporaneous assignment, the Required Lenders or the Borrower shall have arranged in connection with such replacement, to the extent ~~required under~~ requested by the ~~laws of any jurisdiction other than the United States of America~~Administrative Agent, ~~each of the Lenders and the Issuing Banks hereby grants to~~ that (a) neither the Administrative Agent nor any ~~required powers~~ of ~~attorney to execute~~ its Affiliates shall have outstanding any ~~Security Document governed by the laws~~ Loan, Commitment or other obligation of ~~such jurisdiction on such Lender’s~~ any kind under this Agreement or ~~such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in~~ any other Loan Document ~~with reference to~~ and (b) each of the Administrative Agent ~~is not intended~~ and its Affiliates shall have received payment in full of all amounts owing to ~~connote any fiduciary duty~~ it under or in respect of this Agreement and each other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting partiesLoan Document. The ~~Person~~ bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such ~~Person~~ bank and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure.

Appears in 1 contract

Sources: Credit Agreement (Tucson Electric Power Co)

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ each assignee of any Lender hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (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 ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (~~Company or any ~~similar term) herein~~ other Borrower pursuant to this Agreement or ~~in any~~ the other Loan ~~Document with reference~~ Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent is in its individual capacity and not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ any of the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower, any Subsidiary or any other Affiliate of~~ any of the ~~foregoing~~ Borrowers or any of their Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ a Borrower (in which case the ~~Borrower, a Lender or an Issuing Bank~~Administrative Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative 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~~ agents, which may include any of its branches or affiliates, appointed by the Administrative Agent. ~~The~~ the Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (~~which shall~~ not to be unreasonably ~~withheld~~ withheld, conditioned or ~~delayed~~delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. In addition, if the Administrative Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and the Administrative Agent, to remove the Administrative Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld, conditioned or delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. If (a) no successor to a retiring 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 notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such ~~bank~~bank or (b) no successor to a removed Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days following the issuance of a notice of removal, the removal shall become effective on such 30th day and on such date the Required Lenders shall succeed as Administrative Agent to such removed Administrative 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 or removed Administrative Agent, as the case may be, and ~~the~~ such retiring or removed Administrative Agent shall be discharged from its duties and obligations ~~hereunder and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity~~ or removal, as ~~such~~the case may be, hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 10.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, as the case may be. 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 and in respect of the matters referred to in the proviso under clause~~ Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of the Administrative Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ None of the Lenders identified on the facing page or signature ~~page to~~ pages of this Agreement ~~on the Effective Date and funding its Loans on the Funding Date,~~ or ~~delivering its signature page to an Assignment and Assumption~~ elsewhere herein as a “syndication agent” or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 “documentation agent” shall have any ~~right individually to realize upon any of the Collateral~~ right, power, obligation, liability, responsibility 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 duty under this Agreement ~~or any~~ other ~~Loan Document except~~ than those applicable to all Lenders as expressly provided in the Collateral Agreement. 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 Securesuch.

Appears in 1 contract

Sources: Credit Agreement (Automatic Data Processing Inc)

The Administrative Agent. Each of the ~~Lenders and the Issuing Banks~~ Lender Parties hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement ~~and its successors~~ to serve as administrative agent and collateral agent under the Loan ~~Documents~~ Documents, and authorizes the Administrative Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, the Administrative Agent is hereby expressly authorized by the Lenders to execute any and all Loan Documents (including the Guarantee and Collateral Agreement) and other documents with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by this Agreement, and each Lender hereby acknowledges the provisions set forth in the Guarantee and Collateral Agreement and agrees to be bound by such provisions with the same force and effect, and to the same extent, as if such Lender were a party to the Guarantee and Collateral Agreement. In addition, to the extent required under the laws of any jurisdiction other than the United ~~States of America~~States, each of the ~~Lenders and the Issuing Banks~~ Lender Parties 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 such Issuing Bank~~Lender Party’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, ~~own securities of,~~ act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings~~Parent, ~~the Borrower~~ EnergySolutions, any of their respective Subsidiaries or any ~~Subsidiary or~~ other Affiliate ~~thereof~~ of any of the foregoing as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks~~Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the ~~Required~~ Majority Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in 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 ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings~~Parent, ~~the Borrower~~EnergySolutions, any ~~Subsidiary~~ of their respective Subsidiaries or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~the Loan Documents~~Section 10.10) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings~~Parent, ~~the Borrower~~EnergySolutions, a Lender or 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder or~~ thereunder or in connection ~~herewith or~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV III or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 ~~be liable for, or be responsible for~~ have any ~~loss, cost or expense suffered by the Borrower or~~ liability arising from any ~~Lender as a result of, any determination~~ confirmation of the Revolving Exposure or the component amounts ~~thereof or of the Weighted Average Yield~~thereof. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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~~EnergySolutions), 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-~~sub- agent may perform any of and all their duties and exercise their rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 Issuing Banks~~ Lender Parties and ~~the Borrower~~EnergySolutions. Upon receipt of any such notice of resignation, the ~~Required~~ Majority Lenders shall have the right, in consultation with ~~the consent of the Borrower (which shall not be unreasonably withheld or delayed)~~EnergySolutions, 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 intent to resign, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lender Parties, appoint a successor Administrative Agent, which shall be a bank with an office in 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 and under the other Loan Documents. The fees payable by ~~Holdings and the Borrower~~ EnergySolutions to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by ~~Holdings~~Parent, ~~the Borrower~~ EnergySolutions and such successor. 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~~ Lender Parties and ~~the Borrower~~EnergySolutions, 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~~ Majority 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 IX and Section ~~9.03~~10.2, as well as any exculpatory, reimbursement and indemnification provisions set forth elsewhere in this Agreement or 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender ~~and each Issuing Bank~~ Party acknowledges that it has, independently and without reliance upon the Administrative Agent, the Arrangers or any other Lender ~~or Issuing Bank~~Party, 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~~ Party also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Arrangers or any other Lender ~~or Issuing Bank~~Party, 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~~ and funding its Loans on the ~~Funding~~ Closing Date, or delivering its signature page to an Assignment and Assumption or ~~any other Loan Document~~ an Accession Agreement as provided in Section 2.18(g) pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, ~~this Agreement and~~ each ~~other~~ 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 Funding~~ Closing Date. ~~Except with respect to the 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~~ 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 the Required Lenders shall otherwise agree in writing~~capacities) 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. ~~In furtherance~~ Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 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, neither the Arrangers nor any Person named on the cover page of this Agreement as a “syndication agent” or a “documentation agent” shall have any duties or obligations ~~of any Loan Party~~ under this Agreement or any other Loan Document (except in its capacity, as ~~expressly provided in~~ applicable, as a Lender or an Issuing Bank) but shall have the ~~Collateral Agreement. By accepting the benefits~~ benefit of the ~~Collateral~~indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Administrative Agent, ~~each Secured~~ the Lenders and the Issuing Banks, and none of Parent, EnergySolutions or any other Loan Party ~~that is~~ shall have any rights as a third-party to beneficiary of 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 Secureprovisions.

Appears in 1 contract

Sources: Credit Agreement (EnergySolutions, Inc.)

The Administrative Agent. (a) Each of the Lenders and the Issuing ~~Banks~~ Bank hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and~~ as its ~~successors to serve as 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 ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~Without limiting the foregoing, each Lender and the Issuing Bank hereby authorize the Administrative Agent to ~~the extent required under the laws of any jurisdiction other than the United States of America~~execute and deliver, and to perform its obligations under, each of the ~~Lenders and the Issuing Banks hereby grants~~ Loan Documents 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to which the Administrative Agent is ~~not intended~~ a party, to ~~connote any fiduciary duty or~~ exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents and, in the case of the Collateral Documents, to act as agent for the Lenders, the Issuing Bank and the other ~~implied~~ Secured Parties under such Collateral Documents. (~~or express~~b) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The ~~Person~~ bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such ~~Person~~ bank and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks.~~ hereunder. (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents, and its duties hereunder shall be administrative in nature~~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 to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); 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 this Agreement or any other Loan Document or applicable law, and (ciii) except as expressly set forth ~~in the Loan Documents~~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, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document~~Agreement, (iiw) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~herewith, (~~iii~~x) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement or any other Loan Document or the occurrence of any Default~~herein, (ivy) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this Agreement or any other ~~Loan Document or any other~~ agreement, instrument or ~~document~~ document, or (vz) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. . (d) The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (e) The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. . (f) Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing ~~Banks~~ Bank and the Borrower. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the ~~right, with the consent of the Borrower (which shall not be unreasonably withheld or delayed),~~ right to appoint a successor, subject to the approval of the Borrower not to be unreasonably withheld so long as the Borrower is not then in Default. 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing ~~Banks~~Bank, appoint a successor Administrative Agent, subject to the approval of the Borrower not to be unreasonably withheld so long as the Borrower is not then in Default, which shall be a bank with an office in 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 and under the other Loan Documents~~hereunder. 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After 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 's resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause~~ Agent. (ag) ~~above.~~ Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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. . (h) Each ~~Lender,~~ Lender and the Issuing Bank agree that any action taken by delivering its signature page to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Required Lenders on (or, where required by the ~~Effective Date~~ express terms of this Agreement, a greater proportion of the Lenders) in accordance with the provisions of this Agreement or of the other Loan Documents, and the exercise by the Administrative Agent or the ~~Funding Date~~Required Lenders (or, where so required, such greater proportion) 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, the Issuing Bank and other Secured Parties. ~~Except~~ Without limiting the generality of the foregoing, the Administrative Agent shall have the sole and exclusive right and authority to (i) act as the disbursing and collecting agent for the Lenders and the Issuing Bank with respect to all payments and collections arising in connection herewith and with the Collateral Documents, (ii) execute and deliver each Collateral Document and accept delivery of each such agreement delivered by the Borrower or any of its Subsidiaries, (iii) act as collateral agent for the Lenders, the Issuing Bank and the other Secured Parties for purposes of the perfection of all security interests and Liens created by such agreements and all other purposes stated therein, provided, however, that the Administrative Agent hereby appoints, authorizes and directs each Lender and the Issuing Bank to act as collateral sub-agent for the Administrative Agent, the Lenders and the Issuing Bank for purposes of the perfection of all security interests and Liens with respect to the ~~exercise~~ Borrower's and its Subsidiaries' respective Deposit Accounts maintained with, and cash and Cash Equivalents held by, such Lender or the Issuing Bank, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such action as is necessary or desirable to maintain the perfection and priority of ~~setoff rights~~ the security interests and Liens created or purported to be created by the Collateral Documents and (vi) except as may be otherwise specifically restricted by the terms hereof or of any ~~Lender in accordance with Section 9.08 or~~ other Loan Document, exercise all remedies given to the Administrative Agent, the Lenders, the Issuing Bank and the other Secured Parties 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 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~~ relating thereto, applicable law or otherwise. (i) Each of the ~~Secured Parties~~ Lenders and the Issuing Bank hereby direct, in accordance with the terms ~~thereof. In~~ hereof, the ~~event~~ Administrative Agent to release (or, in the case of ~~a foreclosure~~ clause (ii) below, release or subordinate) any Lien held by the Administrative Agent on for the benefit of the Lenders and the Issuing Bank against any of the ~~Collateral pursuant to a public or private sale or~~ following: (i) all of the Collateral, upon termination of the Commitments and payment and satisfaction in full of all Loans, L/C Exposure and all other ~~disposition,~~ Obligations that the Administrative Agent has been notified in writing are then due and payable (and, in respect of contingent L/C Exposure, with respect to which cash collateral has been deposited or ~~any Lender may be~~ a back-up letter of credit has been issued, in either case on terms satisfactory to the ~~purchaser or licensor of any or all of such Collateral at any such sale or other disposition,~~ Administrative Agent and the ~~Administrative Agent, as agent for and representative of the Secured Parties~~ Issuing Bank); (~~but not~~ ii) any ~~Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing~~assets that are subject to a Lien permitted by Section 6.01(B)(k); and (iii) ~~shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or~~ any ~~portion~~ part of the Collateral sold ~~at any such public sale, to use and apply any~~ or disposed 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~~ Borrower if such sale or ~~other disposition. In furtherance~~ disposition is permitted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement). (j) Each of the ~~foregoing~~ Lenders and ~~not in limitation thereof, no Hedging Agreement~~ the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Issuing Bank hereby direct the Administrative Agent to ~~serve~~ execute and deliver or file such termination and partial release statements and do such other things as ~~administrative agent and collateral agent under the Loan Documents and agreed~~ are necessary to release Liens to be ~~bound by~~ released pursuant to this Article VIII promptly upon the ~~Loan Documents~~ effectiveness of any such release. (k) Each Joint Lead Arranger and each Co-Syndication Agent (except in its capacity as a ~~Secure~~Lender) shall not have, and shall not by reason of being named in this Agreement be deemed to have, any obligations under this Agreement.

Appears in 1 contract

Sources: Credit Agreement (Medco Health Solutions Inc)

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ each assignee of any Lender hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (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 ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (~~Company or any ~~similar term) herein~~ other Borrower pursuant to this Agreement or ~~in any~~ the other Loan ~~Document with reference~~ Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent is in its individual capacity and not ~~intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used~~ as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the~~ Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ any of the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower, any Subsidiary or any other Affiliate of~~ any of the ~~foregoing~~ Borrowers or any of their Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ a Borrower (in which case the ~~Borrower, a Lender or an Issuing Bank~~Administrative Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative 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~~ agents, which may include any of its branches or affiliates, appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (~~which shall~~ not to be unreasonably ~~withheld~~ withheld, conditioned or ~~delayed~~delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. In addition, if the Administrative Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and the Administrative Agent, to remove the Administrative Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld, conditioned or delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. If (a) no successor to a retiring 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 notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such ~~bank~~bank or (b) no successor to a removed Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days following the issuance of a notice of removal, the removal shall become effective on such 30th day and on such date the Required Lenders shall succeed as Administrative Agent to such removed Administrative 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 or removed Administrative Agent, as the case may be, and ~~the~~ such retiring or removed Administrative Agent shall be discharged from its duties and obligations ~~hereunder and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity~~ or removal, as ~~such~~the case may be, hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 10.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, as the case may be. 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 and in respect of the matters referred to in the proviso under clause~~ Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of the Administrative Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ None of the Lenders identified on the facing page or signature ~~page to~~ pages of this Agreement ~~on the Effective Date and funding its Loans on the Funding Date,~~ or ~~delivering its signature page to an Assignment and Assumption~~ elsewhere herein as a “syndication agent” or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 “documentation agent” shall have any ~~right individually to realize upon any of the Collateral~~ right, power, obligation, liability, responsibility 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 duty under this Agreement ~~or any~~ other ~~Loan Document except~~ than those applicable to all Lenders as expressly provided in the Collateral Agreement. 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 Securesuch.

Appears in 1 contract

Sources: Credit Agreement (Automatic Data Processing Inc)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan ~~Documents~~ Documents, and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~Without limiting the generality of the foregoing, each Lender hereby authorizes the Administrative Agent to consent, on behalf of each Lender, to the ~~extent required under the laws of any jurisdiction other than the United States of America~~Final Order, each to be negotiated between the Loan Parties, the Administrative Agent, certain other parties and the statutory committees appointed pursuant to Sections 327 and 1103 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting partiesBankruptcy Code. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) 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, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower,~~ Company or any Subsidiary or ~~any~~ other Affiliate ~~of any of the foregoing~~ thereof that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own bad faith, gross negligence or ~~wilful~~ willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower Representative or a ~~Lender or an Issuing Bank~~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 or~~ any ~~other~~ Loan Document, (ii) the contents of any ~~certificate~~certificate (including any Borrowing Base Certificate), report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) qualification of (or lapse of any qualification of) any Account or Inventory under the eligibility criteria set forth herein, other than eligibility criteria expressly referring to the matters described therein being acceptable or satisfactory to, or being determined by, the Administrative Agent, (iv) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default, (ivv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral, or (vvii) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 as being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by ~~the~~ any Borrower or any Lender as a result ~~of,~~ of any determination of the ~~Revolving Exposure~~ Aggregate Credit Exposure, the Borrowing Base or the component amounts ~~thereof or~~ of any of the ~~Weighted Average Yield~~foregoing. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, ~~certificate~~certificate (including any Borrowing Base 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~~ signed, sent or otherwise authenticated by the proper 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 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 (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the ~~signatory, sender or authenticator~~ maker thereof), 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~~ amendment 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 ~~such~~ Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or ~~such~~ Issuing Bank ~~prior~~ sufficiently in advance to the making of such Loan or the ~~issuance~~ issuance, extension, renewal or amendment of such Letter of Credit. 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 of 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 of and all of their duties and exercise their rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the bad faith, negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with bad faith, gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing Banks and the ~~Borrower~~Borrower Representative. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (which shall not be unreasonably withheld or delayed)~~Borrowers, to appoint a ~~successor~~successor that is an Eligible Successor Agent. 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, in consultation with the Borrower Representative, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which is an Eligible Successor Agent, ~~which shall be~~ until such time, if any, as the Required Lenders appoint a ~~bank with an office in New York, New York, or an Affiliate of any such bank~~successor Administrative 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 and under the other Loan Documents. The fees payable by ~~Holdings and~~ the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~by Holdings,~~ between the ~~Borrower~~ Borrowers and such successor. Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 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~~Borrower Representative, 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~~ Lien granted to the Administrative Agent under any ~~Security~~ Collateral Document for the benefit of the ~~Secured~~ Lender Parties, the retiring Administrative Agent shall continue to be vested with such ~~security interest~~ Lien as collateral agent for the benefit of the ~~Secured~~ Lender 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~~ Collateral Document, including any action required to maintain the perfection of any such ~~security interest~~Lien), 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~~ After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this ~~Article~~ 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and ~~each~~ Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent, ~~the Arrangers~~ any Arranger, any Lender or any ~~other Lender~~ Issuing Bank or ~~Issuing Bank~~the Debtors’ Investment Banker, 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, ~~the Arrangers~~ any Arranger, any Lender 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~~Lender and Issuing Bank, by delivering its signature page to this Agreement ~~on the Effective Date~~ and funding its Loans on the ~~Funding~~ Effective Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender or Issuing Bank hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, ~~this Agreement and~~ each ~~other~~ 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 Funding~~ Date. ~~Except with respect~~ The Loan Parties acknowledge and agree that the Administrative Agent may prepare and distribute to the ~~exercise of setoff rights of~~ Lenders 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 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 Reports containing information obtained by the Administrative Agent through the conduct of appraisals and field examinations pursuant to Sections 5.12 and 5.13 and the exercise of its inspection rights under Section 5.09. Each Lender hereby agrees that: (a) it has requested a copy of each Report prepared by or on behalf of the ~~Secured Parties in accordance with the terms thereof. In the event of a foreclosure by~~ Administrative Agent; (b) the Administrative Agent on (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the ~~Collateral pursuant~~ information contained therein or any inaccuracy or omission contained in or relating to a ~~public~~ Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or ~~private sale or other disposition~~examinations, and that any Person performing any field examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal use, not share the Report with any Loan Party or any ~~Lender may be~~ other Person except as otherwise permitted pursuant to this Agreement; and (e) without limiting the ~~purchaser or licensor~~ generality of any ~~or all of such Collateral at any such sale or~~ other ~~disposition~~indemnification provision contained in this Agreement, it will pay and protect, and ~~the Administrative Agent~~indemnify, ~~as agent for~~ defend, 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 hold the Administrative Agent ~~on behalf of the Secured Parties at such sale or other disposition. In furtherance of the foregoing~~ and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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~~ other Person preparing a Report harmless from and against, the ~~Administrative Agent to serve~~ claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as ~~administrative agent and collateral agent under~~ the ~~Loan Documents and agreed to be bound by the Loan Documents as a Secure~~direct or indirect result

Appears in 1 contract

Sources: Senior Secured Debtor in Possession Credit Agreement (Ascena Retail Group, Inc.)

The Administrative Agent. ~~Each~~ each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the ~~Lenders~~ Borrower or any of its Subsidiaries, their stockholders and/or their affiliates. The Borrower and each of its Subsidiaries each acknowledge and agree that (i) the ~~Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under~~ transactions contemplated by the Loan Documents (including the exercise of rights and ~~authorizes~~ remedies hereunder and thereunder) are arm’s-length commercial transactions between the ~~Administrative Agent to take such actions~~ Lenders, on the one hand, and ~~to exercise such powers~~ the Borrower and its Subsidiaries, on the other, and (ii) in connection therewith and with the process leading thereto, (x) except as ~~are delegated to the Administrative Agent by the terms~~ otherwise provided in any of the Loan Documents, ~~together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws~~ no Lender has assumed an advisory or fiduciary responsibility in favor 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, 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 ~~Subsidiary~~ of its Subsidiaries, any of their stockholders or affiliates (irrespective of whether any Lender has advised, is currently advising or will advise the Borrower or any of its Subsidiaries, their stockholders or their affiliates on other ~~Affiliate thereof~~ matters) and (y) except as ~~if such Person were not the Administrative Agent hereunder and without~~ otherwise provided in 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 in~~ of the Loan Documents, each Lender is acting hereunder solely as principal and ~~its duties hereunder shall be administrative in nature. Without limiting~~ not as the ~~generality~~ agent or fiduciary 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent Borrower or any of its ~~Affiliates in any capacity~~Subsidiaries, their management or stockholders. The ~~Administrative Agent shall not be liable for any action taken or not taken by~~ Borrower and each Obligor each acknowledge and agree that it ~~with~~ has consulted legal and financial advisors to the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final extent it deemed appropriate and ~~nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating~~ that it is ~~a “notice of default”) is given~~ responsible for making its own independent judgment with respect to ~~the Administrative Agent by Holdings, the Borrower, a Lender or an Issuing Bank,~~ such transactions and the ~~Administrative Agent shall~~ process leading thereto. The Borrower and each Obligor each agree that it will not ~~be responsible for~~ claim that any Lender has rendered advisory services hereunder of any nature or ~~have any~~ respect, or owes a fiduciary duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 CollateralSubsidiaries, 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging Obligations will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with such transactions contemplated hereby or the management or release of any Collateral or of the obligations of any Loan Party under this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secureprocess leading thereto.

Appears in 1 contract

Sources: Senior Secured Term Loan Credit Agreement (THL Credit, Inc.)

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ each assignee of any Lender hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (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 ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (~~Company or any ~~similar term) herein~~ other Borrower pursuant to this Agreement or ~~in any~~ the other Loan ~~Document with reference~~ Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent is in its individual capacity and not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ any of the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower, any Subsidiary or any other Affiliate of~~ any of the ~~foregoing~~ Borrowers or any of their Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ a Borrower (in which case the ~~Borrower, a Lender or an Issuing Bank~~Administrative Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative 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~~ agents, which may include any of its branches or affiliates, appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (~~which shall~~ not to be unreasonably ~~withheld~~ withheld, conditioned or ~~delayed~~delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. In addition, if the Administrative Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and the Administrative Agent, to remove the Administrative Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld, conditioned or delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. If (a) no successor to a retiring 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 notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such ~~bank~~bank or (b) no successor to a removed Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days following the issuance of a notice of removal, the removal shall become effective on such 30th day and on such date the Required Lenders shall succeed as Administrative Agent to such removed Administrative 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 or removed Administrative Agent, as the case may be, and ~~the~~ such retiring or removed Administrative Agent shall be discharged from its duties and obligations ~~hereunder and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity~~ or removal, as ~~such~~the case may be, hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 10.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, as the case may be. 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 and in respect of the matters referred to in the proviso under clause~~ Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of the Administrative Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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. None of the Lenders identified on the facing page or signature pages of this Agreement or elsewhere herein as a “syndication agent” or “documentation agent” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. 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 Company or any Subsidiary 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 in connection with the Loans or the Commitments, (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 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 Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, 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, ~~by delivering its signature page~~ 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 Commitments and this ~~Agreement on the Effective Date and funding its Loans on the Funding Date~~Agreement, or ~~delivering~~ (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its ~~signature page~~ sole discretion, and such Lender. In addition, unless sub-clause (i) in the immediately preceding paragraph is true with respect to ~~an Assignment and Assumption or any other Loan Document pursuant to which it shall become~~ a Lender ~~hereunder~~or a Lender has provided another representation, ~~shall be deemed to have acknowledged receipt of~~warranty and covenant as provided in accordance with sub-clause (iv) in the immediately preceding paragraph, such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and ~~consented~~ (y) covenants, from the date such Person became a Lender party hereto to ~~and approved~~the date such Person ceases being a Lender party hereto, ~~this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~for the benefit of, the Administrative ~~Agent~~ Agent, the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the ~~Lenders on~~ benefit of the ~~Effective Date~~ Company or any Subsidiary that none of the ~~Funding Date. Except~~ Administrative Agent, the Arrangers or any of their respective Affiliates is 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 Commitments and this Agreement (including in connection with the reservation or exercise of ~~setoff~~ any 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 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~~under this Agreement, any Loan Document or any documents related to hereto or thereto). ~~In the event of a foreclosure by the~~ 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~~Arrangers hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, ~~as agent for and representative of the Secured Parties (but not any Lender~~ or ~~Lenders~~ to give advice in ~~its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled~~a fiduciary capacity, 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided~~ transactions contemplated hereby, and that such Person has a financial interest in the ~~Collateral~~ transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Commitments and this Agreement~~. By accepting~~ , (ii) may recognize a gain if it extended the ~~benefits of~~ Loans or the ~~Collateral~~Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, ~~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~~ 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 ~~be bound by~~ the ~~Loan Documents as a Secure~~foregoing.

Appears in 1 contract

Sources: Credit Agreement (Automatic Data Processing Inc)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, ~~except~~ except, in the case of the Administrative Agent, discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and 137 shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to such agent by the ~~Administrative Agent by Holdings, the Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. If no successor shall have been so appointed by the Required Lenders and shall have ~~accepted~~ a▇▇▇▇▇▇▇ such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its ~~intent to resign~~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 ~~and~~ or the Issuing ~~Banks~~Banks 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 (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 successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender ~~and each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant Documents to which it ~~shall become~~ is a ~~Lender hereunder, shall be deemed~~ party. Except as otherwise provided in Section 9.02(b) with respect to ~~have acknowledged receipt of, and consented to and approved,~~ this ~~Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~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 ~~Lenders on~~ Loan Documents, provided that, without the ~~Effective Date~~ prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the ~~Funding Date. Except~~ 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 ~~exercise~~ Collateral, 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 ~~setoff rights~~ either a disposition of property not prohibited hereunder (including, without limitation, any ~~Lender~~ property subject to a participation or repurchase transactions) 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) in accordance with Section ~~9.08~~ 9.02(c) and (3) spread Liens to any Designated Indebtedness or ~~with respect to a Lender’s right to file a proof of claim~~ Hedging Agreement 139 Obligations (as such terms are defined in ~~an insolvency proceeding, 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~~ Security Agreement) 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, Guarantee 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Security Agreement. 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 Secure.

Appears in 1 contract

Sources: Senior Secured Credit Agreement (Blackstone Secured Lending Fund)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to any Lender or the Issuing Bank 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non-appealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give~~ by providing not less than thirty (30) days advance written notice ~~of its intent to resign~~ to the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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 ~~intent to resign~~resignation, then the retiring Administrative Agent’s resignation shall nonetheless become effective at the end of such thirty (30) days period (except that in the case of any collateral security held by the Administrative Agent ~~may,~~ on behalf of the Lenders ~~and~~ or the Issuing ~~Banks~~Banks 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 (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 successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. Any resignation by SMBC as Administrative Agent pursuant to this Section 8.01 shall also constitute its resignation as an Issuing Bank and ~~in respect~~ a Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. Each Lender ~~and each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant Documents to which it ~~shall become~~ is a ~~Lender hereunder, shall be deemed~~ party. Except as otherwise provided in Section 9.02(b) with respect to ~~have acknowledged receipt of, and consented to and approved,~~ this ~~Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~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 ~~Lenders on~~ Loan Documents, provided that, without the ~~Effective Date~~ prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the ~~Funding Date. Except~~ 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 ~~exercise~~ Collateral, 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 ~~setoff rights~~ either a disposition of property not prohibited hereunder or a disposition to which the Required Lenders have consented, (2) release from any ~~Lender~~ Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) in accordance with Section ~~9.08~~ 9.02(c) and (3) spread Liens to any Designated Indebtedness or ~~with respect to a Lender’s right to file a proof of claim~~ Hedging Agreement Obligations (as such terms are defined in ~~an insolvency proceeding, 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~~ Security Agreement) 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, Guarantee 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Security Agreement. 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 Secure.

Appears in 1 contract

Sources: Senior Secured Revolving Credit Agreement (PGIM Private Credit Fund)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan ~~Documents~~ Documents, and authorizes the Administrative Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any ~~jurisdiction other than the United States of America~~jurisdiction, 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 ~~such~~ Issuing Bank’s behalf. ~~It is understood and agreed that~~ Neither the ~~use of the term “agent” (or any similar term) herein or in~~ Borrower nor any other Loan ~~Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine~~ Party shall have rights as a third-party beneficiary of any ~~applicable law. Instead,~~ such ~~term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~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 the term “Lender” or “Lenders” shall include the Person serving as the Administrative Agent hereunder in its individual capacity, unless otherwise expressly indicated, the context otherwise requires or such Person is not extending Commitments or Loans hereunder at such time. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings~~the Parent, the Borrower or any other Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other express or implied obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any 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 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, the Borrower, any other Subsidiary or any ~~other~~ Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by ~~Holdings~~the Parent, the Borrower, a Lender or 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder or~~ thereunder or in connection ~~herewith or~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper 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 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 (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 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 ~~such~~ Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or ~~such~~ 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 their duties and exercise their rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the ~~right~~right to appoint a successor, ~~with the consent~~ 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)~~, to appoint a successor~~. 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 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 and the Issuing Banks, appoint a successor Administrative Agent~~, which shall be a bank with an office in 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 and under the other Loan Documents. The fees payable by ~~Holdings~~ the Parent and the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by ~~Holdings~~the Parent, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 the retiring Administrative Agent was acting as Administrative Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and ~~each~~ Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 ~~each~~ Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date~~Agreement, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, and if necessary releasing such signature page from escrow, shall be deemed to have acknowledged receipt of, and consented to and approved, ~~this Agreement and~~ each ~~other~~ 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 Funding~~ Date. Except with respect to the 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 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured ~~Hedging~~ 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 ~~this Agreement or~~ any ~~other~~ Loan Document except as expressly provided in the Collateral Agreement. 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 Secure

Appears in 1 contract

Sources: Credit Agreement (CyrusOne Inc.)

The Administrative Agent. Each of the Lenders and the Issuing ~~Banks~~ Lender hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition, to~~ The Administrative Agent shall also act as the ~~extent required~~ “collateral agent” under the ~~laws of any jurisdiction other than the United States of America~~Loan Documents, and each of the Lenders (in its capacities as a Lender) hereby irrevocably appoints and ~~the Issuing Banks hereby grants to~~ authorizes the Administrative Agent to act as the agent of (and to hold any ~~required powers of attorney to execute any Security Document governed~~ security interest created by the ~~laws~~ Security Documents for and on behalf of or on trust for) such ~~jurisdiction~~ Lender for purposes of acquiring, holding and enforcing any and all Liens on ~~such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use~~ Collateral granted by any of the ~~term~~ Obligors to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” (or and any ~~similar term) herein or in any other Loan Document with reference to~~ co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent ~~is not intended~~ pursuant to ~~connote~~ this Article for purposes of holding or enforcing any ~~fiduciary duty or other implied~~ Lien on the Collateral (or ~~express~~any portion thereof) ~~obligations arising~~ granted under ~~agency doctrine~~ 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 including Section 10.03, 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. Without limiting any other provision of this Article, each Lender hereby authorizes the Administrative Agent to enter into (and/or agree to any amendments to) from time to time (i) any Security Documents and (ii) intercreditor (including subordination) arrangements on behalf of the Lenders in respect of any ~~applicable law. Instead~~Other Debt or Permitted Additional Indebtedness to the extent permitted or contemplated hereunder, ~~such term is used~~ in each case as ~~a matter of market custom~~ the Administrative Agent shall determine to be appropriate and ~~is intended to create or reflect only an administrative relationship between contracting parties~~consistent with the provisions hereof. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the Borrower~~an Obligor), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing ~~Banks~~ Lender and the Borrower. Additionally, if the Lender then acting as the Administrative Agent is a Defaulting Lender by virtue of clause (e) of the definition thereof, then the Administrative Agent may be removed by the Required Lenders and the Borrower (or only the Required Lenders, if a Default shall exist) upon 30 days’ written notice thereof to the Administrative Agent and the Lenders. Upon ~~receipt of~~ any such ~~notice of resignation~~resignation or removal, the Required Lenders and the Borrower shall have the right, ~~with the consent of the Borrower (which~~ so long as no Default shall ~~not be unreasonably withheld or delayed)~~exist, to appoint a ~~successor~~successor from among the Lenders. If In the case of resignation by the Administrative Agent, if no successor shall have been so appointed by the Required Lenders and the Borrower and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing ~~Banks~~Lender, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with a minimum capital and surplus of $500,000,000 and with an office in New York, New York, or an Affiliate of any such bank. In the case of removal of the Administrative Agent as provided above, if no successor shall have been so appointed by the Required Lenders and the Borrower (or by the Required Lenders, if a Default shall exist) and shall have accepted such appointment within 30 days after the Administrative Agent receives notice of removal, then the Borrower, so long as no Default shall exist, may, on behalf of the Lenders and the Issuing Lender, appoint a successor Administrative Agent which shall be a bank with a minimum capital and surplus of $500,000,000 and with an office in 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 and under the other Loan Documents~~hereunder. 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~or removal hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Except as otherwise provided in Section 10.02(b) with respect to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toAgreement, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or the Lenders on the Effective Date or the Funding Date. Except with respect to the 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 waiver under any of the ~~Collateral~~ Loan Documents, provided that, without the prior consent of each Lender, the Administrative Agent shall not (except as provided herein or ~~to enforce any Guarantee~~ in the Security Documents) release all or substantially all of the ~~Obligations, it being understood and agreed that all powers, rights and remedies~~ collateral or terminate any Lien with respect thereto under the ~~Loan~~ Security Agreement, except that no such consent shall be required, and the Administrative Agent is hereby authorized, to release any Lien covering property that is the subject of either a Disposition of property permitted hereunder or a Disposition to which the Required Lenders have consented. Notwithstanding anything to the contrary contained herein, the Security Documents executed by the Obligors in connection with this Agreement may be ~~exercised solely~~ in a form reasonably determined by the Administrative Agent ~~on behalf of the Secured Parties in accordance~~ and may be amended and waived with the ~~terms thereof. In the event~~ consent of ~~a foreclosure by~~ the Administrative Agent ~~on any~~ at the request of the ~~Collateral pursuant~~ Borrower without the need to ~~a public or private sale or other disposition,~~ obtain the ~~Administrative Agent or~~ consent of any Lender ~~may be the purchaser~~ if such amendment or ~~licensor~~ waiver is delivered in order (i) to comply with applicable local law, rule or regulation or advice 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Securelocal counsel,

Appears in 1 contract

Sources: Credit Agreement (Sinclair Broadcast Group Inc)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ irrevocably appoints the Valuation Agent as its agent hereunder and authorizes the Valuation Agent to take such actions on its behalf and to exercise such powers as are delegated to the Valuation Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The Valuation Agent may resign by providing not less than thirty (30) days advance written notice to the Administrative Agent and the Borrower. Upon any ~~required~~ such notice of resignation, the Person then serving as Administrative Agent hereunder shall become the successor Valuation Agent, effective at the end of such thirty (30) day period. 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 ~~of attorney~~ as are delegated to ~~execute any Security Document governed~~ the Collateral Agent by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof as if such Person were not the Administrative Agent 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 in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 services in connection with this Agreement or ~~any other Loan Document, (ii)~~ otherwise without having to account for the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other Loan Document, other than to confirm receipt of items expressly required to be delivered same 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure.

Appears in 1 contract

Sources: Senior Secured Revolving Credit Agreement (Fidelity Private Credit Co LLC)

The Administrative Agent. Each of the ~~Lenders~~ Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing ~~Banks~~ Bank hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and~~ as its ~~successors to serve as administrative~~ agent ~~and collateral agent under the Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the ~~Lenders~~ Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and the Issuing ~~Banks~~ Bank hereby grants to the Administrative Agent any required powers of attorney to execute any ~~Security~~ Collateral Document governed by the laws of such jurisdiction on such Lender’s or ~~such~~ Issuing Bank’s behalf. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders (including the Issuing Bank), and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” as used herein or in any other Loan Documents (or any similar term) ~~herein or in any other Loan Document~~ with reference to the Administrative Agent is not intended to connote any fiduciary ~~duty~~ or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market ~~custom~~ custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The ~~Person~~ bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such ~~Person~~ bank and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct ~~(such absence to be presumed unless otherwise~~ as determined by a final nonappealable judgment of a court of competent ~~jurisdiction by a final and nonappealable judgment)~~jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan ~~Document or the occurrence of any Default~~Document, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ 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 IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing ~~Banks~~ Bank 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 (which shall not be unreasonably withheld or delayed)~~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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing ~~Banks~~Bank, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in 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 and under the other Loan Documents~~hereunder. 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender acknowledges and ~~each Issuing Bank acknowledges~~ agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not 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, the Arrangers~~ Agent 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. Each Lender ~~and each Issuing Bank also acknowledges that it will~~shall, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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. Each Lender, by delivering its signature page~~ thereunder and in deciding whether or to ~~this Agreement on~~ the ~~Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant~~ extent to which it ~~shall become~~ will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the Lenders, if any, identified in this Agreement as a syndication agent, Co-Documentation Agent or similar title 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 ~~acknowledged receipt~~ 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, a Co-Documentation Agent or similar title, 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 ~~consented~~ interest on any Loan after the date such principal or interest has become due and payable pursuant to ~~and approved,~~ the terms of this ~~Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~Agreement. In its capacity, the Administrative Agent or is a “representative” of the ~~Lenders on~~ Secured Parties within the ~~Effective Date or~~ meaning of the ~~Funding Date~~term “secured party” as defined in the New York Uniform Commercial Code. ~~Except with respect~~ Each Lender authorizes the Administrative Agent to enter into each of the ~~exercise of setoff rights of any~~ Collateral Documents to which it is a party and to take all action contemplated by such documents. Each 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,~~ agrees that no Secured Party (other than the Administrative Agent) shall have ~~any~~ the right individually to seek to realize upon the security granted by any ~~of the~~ Collateral ~~or to enforce any Guarantee of the Obligations~~Document, it being understood and agreed that ~~all powers,~~ such rights and remedies ~~under the Loan Documents~~ 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 ~~in accordance with the terms thereof. In the event of~~ any Loan Documents necessary or appropriate to grant and perfect a ~~foreclosure by the Administrative Agent~~ Lien 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~~ in favor 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~~ Parties. The Lenders hereby authorize the Administrative Agent, at ~~such sale~~ its option and in its discretion, to (a) release or, as applicable, subordinate any Lien granted to or ~~other disposition. In furtherance~~ held by the Administrative Agent upon any Collateral (i) as described in Section 9.02(d); (ii) as permitted by, but only in accordance with, the terms of the ~~foregoing~~ applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder and ~~not~~ (b) subject to any more specific terms and conditions set forth in ~~limitation thereof~~the Security Agreement, ~~no Hedging Agreement the obligations under which constitute Secured Hedging Obligations will create (~~enter into non-disturbance or ~~be deemed to create) in favor of any Secured Party that is a party thereto any rights~~ similar agreements in connection with the ~~management~~ licensing of intellectual property permitted pursuant to the terms of this Agreement. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Administrative Agent (or such shorter period as is acceptable to the Administrative Agent), the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent 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 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, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent. In addition, at the request of the Borrower, the Administrative Agent shall (and hereby is irrevocably authorized by the Lenders to) subordinate any Lien on the Collateral or enter into non-disturbance or similar agreements in each case to the extent provided in Section 9.15. In case of the ~~obligations~~ pendency of any proceeding with respect to any Loan Party under ~~this Agreement~~ any Federal, state or ~~any other Loan Document except as expressly provided~~ foreign bankruptcy, insolvency, receivership or similar law now or hereafter in ~~the Collateral Agreement. By accepting the benefits of the Collateral~~effect, ~~each Secured Party that is a party to any such Hedging Agreement shall be deemed to have appointed~~ the Administrative Agent (irrespective of whether the principal of any Loan or any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (a) to ~~serve~~ file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, LC Exposure and all other Secured Obligations that are owing and unpaid and to file such other documents as ~~administrative agent~~ may be necessary or advisable in order to have the claims of the Lenders, the Issuing Bank and ~~collateral agent~~ the Administrative Agent (including any claim under Sections 2.12, 2.13, 2.15, 2.16, 2.17 and 9.03) allowed in such judicial proceeding; and (b) collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, the Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Issuing Bank or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.03). The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and ~~agreed to be bound by the Loan Documents as a Secure~~in such manner purchase (either directly or through on

Appears in 1 contract

Sources: Credit Agreement (Eagle Pharmaceuticals, Inc.)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and~~ as its ~~successors to serve as 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 ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition, to the extent required under the laws~~ The provisions of ~~any jurisdiction~~ this Article (other than the ~~United States~~ sixth and seventh paragraphs of ~~America, each~~ this Article set forth below) are solely for the benefit of ~~the Lenders and the Issuing Banks hereby grants to~~ the Administrative Agent and the Lenders (including the Swingline Lender), and neither the Company nor any ~~required powers~~ other Credit Party shall have rights as a third party beneficiary of ~~attorney to execute~~ any ~~Security Document governed by the laws~~ of such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf~~provisions. It is understood and agreed that the use of the term “agent” as used herein (or any similar term) ~~herein or in any other Loan Document~~ with reference to the Administrative Agent is not intended to connote any fiduciary ~~duty~~ or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market ~~custom~~ custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The ~~Person~~ bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such ~~Person~~ bank and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents, and its duties hereunder shall be administrative in nature~~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 to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth ~~in the Loan Documents~~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, any Subsidiary~~ Company or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed ~~not~~ to have no knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Company or a ~~Lender or an Issuing Bank~~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 or any other Loan Document~~Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement or any other Loan Document or the occurrence of any Default~~herein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this Agreement or any other ~~Loan Document or any other~~ agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative 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~~it. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing Banks and the ~~Borrower~~Company. The Administrative Agent may be removed at any time that it constitutes a Defaulting Lender by written notice received by the Administrative Agent from the Required Lenders, such removal to be effective on the date specified by the Required Lenders. Upon ~~receipt of~~ any such ~~notice of resignation~~resignation or removal, the ~~Required Lenders~~ Company shall have the right, in consultation with the ~~consent of the Borrower (which shall not be unreasonably withheld or delayed)~~Required Lenders, to appoint a successor. If no successor shall have been so appointed by the ~~Required Lenders~~ Company and shall have accepted such appointment within 30 days after the ~~retiring~~ Administrative Agent gives notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as the 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 and under the other Loan Documents~~hereunder. The fees payable by ~~Holdings and~~ the ~~Borrower~~ Company to a the successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~by Holdings,~~ between the ~~Borrower~~ Company and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~or removal hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 10.03 shall continue in effect for the benefit of ~~such~~ the 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 the Administrative ~~Agent and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~None of the Lenders, ~~by delivering its signature page to~~ if any, identified in this Agreement on as a Co-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 ~~Effective Date and funding its Loans on the Funding Date~~foregoing, none of such Lenders shall have or ~~delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall~~ be deemed to have ~~acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to,~~ a fiduciary relationship with any Lender. Each Lender hereby makes the ~~Administrative Agent or the Lenders on the Effective Date or the Funding Date. Except~~ same acknowledgments with respect to the ~~exercise of setoff rights of any Lender~~ relevant Lenders in ~~accordance with Section 9.08~~ their respective capacities as Co-Syndication Agents or Co-Documentation Agents, as applicable, as it makes 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 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 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 ~~Secured Parties in accordance with~~ Lenders to enforce 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~~ principal of ~~the Collateral sold at any such public sale, to use~~ and ~~apply any of the Loan Document Obligations as a credit~~ interest 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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~~ after the date such principal or interest has become due and payable pursuant to the terms of this ~~Agreement or any other Loan Document except as expressly provided in the Collateral~~ Agreement. 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 Secure.

Appears in 1 contract

Sources: Credit Agreement (Brown Forman Corp)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, ~~except~~ except, in the case of the Administrative Agent, discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to such agent by the ~~Administrative Agent by Holdings, the Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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 ~~intent to resign~~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 ~~and~~ or the Issuing ~~Banks~~Banks 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 (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 successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender ~~and each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant Documents to which it ~~shall become~~ is a ~~Lender hereunder, shall be deemed~~ party. Except as otherwise provided in Section 9.02(b) with respect to ~~have acknowledged receipt of, and consented to and approved,~~ this ~~Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~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 ~~Lenders on~~ Loan Documents, provided that, without the ~~Effective Date~~ prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the ~~Funding Date. Except~~ 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 ~~exercise~~ Collateral, 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 ~~setoff rights~~ either a disposition of property not prohibited hereunder (including, without limitation, any ~~Lender~~ property subject to a participation or repurchase transactions) 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) in accordance with Section ~~9.08~~ 9.02(c) and (3) spread Liens to any Designated Indebtedness or ~~with respect to a Lender’s right to file a proof of claim~~ Hedging Agreement Obligations (as such terms are defined in ~~an insolvency proceeding, 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~~ Security Agreement) 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, Guarantee 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Security Agreement. 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 Secure.

Appears in 1 contract

Sources: Senior Secured Credit Agreement (Blackstone Private Credit Fund)

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement ~~and its successors~~ is hereby appointed to ~~serve~~ act as ~~administrative agent and collateral agent under~~ Administrative Agent on behalf of the ~~Loan Documents and~~ Lenders. Each of the Lenders, including each assignee of any Lender, hereby irrevocably authorizes the ~~Administrative~~ Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the ~~Administrative~~ Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other amounts due to the ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s~~ Company or ~~such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in~~ any other Loan ~~Document with reference~~ Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, the Administrative Agent is ~~not intended~~ hereby expressly authorized to ~~connote~~ release any ~~fiduciary duty~~ Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person other ~~implied (~~than the Company or ~~express) obligations arising under agency doctrine~~ an Affiliate of ~~any applicable law~~the Company in a transaction permitted by Section 6.04. ~~Instead, such term is used as a matter of market custom and is intended~~ With respect to ~~create or reflect only an administrative relationship between contracting parties. The Person serving as~~ the Loans made by it hereunder,the Administrative Agent ~~hereunder~~ in its individual capacity and not as Administrative Agent shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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~~ no duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall ~~not~~ have ~~any~~ no duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Company or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or wilful ~~misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower, a Lender or an Issuing Bank~~Company (in which case the Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability 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 of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders 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 (which shall not be unreasonably withheld or delayed)~~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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in 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 and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After 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 's resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause~~ Agent. (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Loan Party and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Loan Party; PROVIDED that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of the Administrative Agent or any of its directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure.

Appears in 1 contract

Sources: 364 Day Credit Agreement (Edwards Lifesciences Corp)

The Administrative Agent. (a) Each of the Lenders and the Issuing Banks hereby irrevocably appoints ~~the entity named~~ MSSF to act on its behalf as ~~Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and authorizes~~ the Administrative Agent and authorizes MSSF to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of hereof and the other 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ irrevocably appoints MSSF as its Collateral Agent and authorizes MSSF to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws~~ terms hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article VIII are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and neither Holdings nor the Borrowers shall have any rights as a third party beneficiary of any of such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent”~~ provisions, except as expressly set forth in subparagraph (~~or any similar term~~f) ~~herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied~~ below. (~~or express~~b) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. 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~~ the term “Lender” or “Lenders” shall, 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~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the ~~Borrower~~ Borrowers or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks.~~ Lenders. (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~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 ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law,~~ Law; and (c) except as expressly set forth 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 ~~Holdings, the Borrower, any Subsidiary~~ Holdings or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided ~~in the Loan Documents~~herein) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice describing such Default thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by Holdings, ~~the~~ a Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document~~ therein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. . (d) The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the ~~issuance, extension, renewal or increase~~ issuance 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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~~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. . (e) The Administrative Agent may perform any of 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 of and all ~~their~~ of its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article VIII shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the ~~credit facilities~~ Facilities provided for herein as well as activities as Administrative Agent. . (f) The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may ~~resign~~ at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall~~ give notice of its ~~intent to resign~~ resignation to the Lenders, the Issuing Banks and the ~~Borrower~~Borrowers. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrowers and (unless an Event of Default under clause (a) or (b), (h) or (i) of Article VII shall have occurred and be continuing) with the consent of the ~~Borrower~~ Borrowers (which consent of the Borrowers shall not be unreasonably withheld or delayed), 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 thirty (30) days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon~~ Agent meeting the ~~acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all~~ qualifications set forth above; provided that if the ~~rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring~~ Administrative Agent shall ~~be discharged from its duties and obligations hereunder and under~~ notify the ~~other Loan Documents. The fees payable by Holdings~~ Borrowers and the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by Holdings, the Borrower and such successor. Notwithstanding the foregoing, in the event Lenders that no ~~successor Administrative Agent shall have been so appointed and shall have~~ qualifying Person has accepted such ~~appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign~~appointment, ~~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~~ then such resignation ~~stated~~ shall nonetheless become effective in accordance with such ~~notice,~~ notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan ~~Documents; provided that, solely for purposes~~ Documents (except that in the case of ~~maintaining~~ any collateral security ~~interest granted to~~ held by the Administrative Agent on behalf of the Lenders or the Issuing Banks under any ~~Security Document for the benefit~~ of the ~~Secured Parties~~Loan Documents, 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~~ collateral security until such time as a successor Administrative Agent is ~~appointed~~ appointed) and ~~accepts such appointment in accordance with this paragraph~~ (~~it being understood~~ 2) all payments, communications and ~~agreed that~~ determinations provided to be made by, to or through the ~~retiring~~ Administrative Agent shall ~~have no duty~~ instead be made by or ~~obligation~~ to ~~take any further action under any Security Document~~each Lender and each Issuing Bank directly, ~~including any action required to maintain the perfection of any~~ until such ~~security interest), and (b)~~ time as the Required Lenders appoint a successor Administrative Agent as provided for above in this section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent~~; provided that (i) all payments required to be made hereunder or under any other Loan Document to~~ , and the ~~Administrative Agent for the account of any Person other than the~~ retiring Administrative Agent shall be ~~made directly~~ discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this section). The fees payable by the Borrowers to ~~such Person and (ii) all notices and other communications required or contemplated to be given or made to the~~ a successor Administrative Agent shall ~~also directly~~ be ~~given or made~~ the same as those payable to ~~each Lender~~ its predecessor unless otherwise agreed between the Borrowers and ~~each Issuing Bank~~such successor. ~~Following~~ After the ~~effectiveness of the~~ retiring Administrative Agent’s resignation ~~from its capacity as such~~hereunder and under the other Loan Documents, the provisions of this Article VIII and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 the retiring Administrative Agent was acting as Administrative Agent. Any resignation by MSSF as Administrative Agent pursuant to this section shall also constitute its resignation as Issuing Bank and ~~in respect~~ Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition of Defaulting Lender, the Required Lenders may, to the extent permitted by applicable Law, by notice in writing to the Borrowers and such Person, remove such Person as Administrative Agent, and the Borrowers in consultation with the Lenders shall, unless an Event of Default shall have occurred and be continuing, in which case the Required Lenders in consultation with the Borrowers shall, 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 appointed by the Borrowers or the Required Lenders, as applicable, and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with notice on the Removal Effective Date. (g) Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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,~~ . (h) To the extent required by ~~delivering its signature page to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or~~ any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toapplicable Laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the ~~Lenders on~~ provisions of Section 2.15, each Lender shall indemnify and hold harmless the ~~Effective Date~~ Administrative Agent against, and shall make payable in respect thereof within 10 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 ~~Funding Date~~Administrative Agent by the IRS 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 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), whether or not such Tax was correctly or legally imposed or asserted by the relevant Governmental Authority. ~~Except with respect~~ A certificate as to the ~~exercise~~ amount of ~~setoff rights of~~ such payment or liability delivered to 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 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~~shall be conclusive absent manifest error. ~~In the event of a foreclosure by~~ Each Lender hereby authorizes 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 set off and apply any ~~of the Loan Document Obligations as a credit on account of the purchase price for~~ and all amounts at any ~~collateral payable by the Administrative Agent on behalf of the Secured Parties at~~ time owing to such sale or other disposition. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 Lender under this Agreement or any other Loan Document ~~except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party to~~ against any ~~such Hedging Agreement shall be deemed to have appointed~~ amount due the Administrative Agent under this clause (h). The agreements in this clause (h) 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 Commitments and the repayment, satisfaction or discharge of all other Obligations. For the avoidance of doubt, a “Lender” shall, for purposes of this clause (h), include any Swingline Lender and any Issuing Bank. (i) The Lenders irrevocably agree: (i) that any Lien on any Property granted to ~~serve~~ or held by the Administrative Agent under any Loan Document shall be automatically released (A) upon termination of the Commitments and payment in full of all Obligations (in each case, other than (x) obligations under Secured Hedge Agreements, (y) Cash Management Obligations and (z) contingent reimbursement and indemnification obligations, in each case not yet accrued and payable) and the expiration or termination or Cash Collateralization of all Letters of Credit (or the making of other arrangements satisfactory to the Administrative Agent and the applicable Issuing Bank in their sole discretion), (B) at the time the Property subject to such Lien is Disposed or to be Disposed as ~~administrative agent and collateral agent~~ part of or in connection with any Disposition permitted hereunder or under any other Loan Document to any Person (other than any Disposition to another Loan Party), (C) subject to Section 9.02, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such greater number of Lenders as may be required pursuant to Section 9.02) or (D) if the Property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guarantee under the ~~Loan Documents~~ Guarantee Agreement pursuant to clause (iii) below; (ii) (A) to release or subordinate any Lien on any Property (other than the Equity Interests of the Borrowers and ~~agreed~~ any Indian/PRC Holdco) granted to ~~be bound~~ or held by the Administrative Agent under any Loan ~~Documents as a Secure~~Document to the holder of any Lien on such property that is

Appears in 1 contract

Sources: Amendment No. 1 (Genpact LTD)

The Administrative Agent. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably appoints the entity named as the Administrative Agent in the heading of this Agreement and its successors to serve ~~as administrative agent and collateral agent~~ in such capacity under the Loan ~~Documents~~ Documents, and authorizes the Administrative Agent to execute, deliver and administer the Loan Documents and to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. 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~~Agent (and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent in its individual capacity), and such Person and its Affiliates may accept deposits from, lend money to, own securities of, 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 Subsidiary or ~~other~~ Affiliate thereof or any other Person that may do business with or own Equity Interests in the Borrower as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks~~Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. In performing its functions and duties under this Agreement, the Administrative Agent shall act solely as agent of the Lenders and ~~its duties hereunder~~ shall not assume, or be ~~administrative in nature~~deemed to have assumed, any relationship of agency or trust with or for the Borrower. 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 (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) 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, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent exercise (including in connection with any transaction contemplated by Section 6.03) or that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); , provided that the Administrative Agent shall CHAR1\1536846v3 CHAR1\1539728v3 * For voting purposes only. Percentages are approximate due to rounding. ** After giving effect to an assignment on the Effective Date by Northwest Farm Credit Services, PCA of $70,000,000.00 of its Commitment to CoBank, FCB (which will become a Lender via an Assignment and Assumption dated and effective as of the Effective Date), but before giving effect to the participations on the Effective Date. *** After giving effect to the Effective Date assignment and the Effective Date participations. not be required to take any action that, in its opinion, could ~~expose the Administrative Agent to liability or~~ be contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law~~law or may expose it to liability, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower, or any Subsidiary or ~~any other~~ Affiliate of ~~any of~~ the ~~foregoing~~ Borrower, that is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) ), which consent or request, as applicable, shall be binding upon all Lenders, or in the absence of its own gross ~~negligence~~ negligence, bad faith or ~~wilful~~ willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”” and stating the nature of the Default) is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder or~~ thereunder or in connection ~~herewith or~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default, (iv) the due execution, legality, sufficiency, validity, enforceability, ~~effectiveness~~ effectiveness, genuineness or ~~genuineness~~ value of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper 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 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 (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 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,~~ Loan that by its terms must be fulfilled to the satisfaction of a ~~Lender or an Issuing Bank~~Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender ~~or such Issuing Bank~~ unless the Administrative Agent shall have received notice to the contrary from such Lender ~~or such Issuing Bank~~ prior to the making of such ~~Loan or the issuance of such Letter of Credit~~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 of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit ~~facilities~~ facility provided for herein as well as activities as the Administrative Agent. ~~The Administrative~~ No Agent shall ~~not~~ be CHAR1\1536846v3 CHAR1\1539728v3 * For voting purposes only. Percentages are approximate due to rounding. ** After giving effect to an assignment on the Effective Date by Northwest Farm Credit Services, PCA of $70,000,000.00 of its Commitment to CoBank, FCB (which will become a Lender via an Assignment and Assumption dated and effective as of the Effective Date), but before giving effect to the participations on the Effective Date. *** After giving effect to the Effective Date assignment and the Effective Date participations. responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross ~~negligence~~ negligence, bad faith or ~~wilful misconduct in the selection of such sub-agents~~willful misconduct. Subject to ~~the terms of~~ this ~~paragraph~~paragraph and Section 9.18, the Administrative Agent may resign ~~at any time~~ 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 Issuing Banks~~ Borrower and the ~~Borrower~~Lenders. Upon receipt of any such notice of ~~resignation~~resignation by the Administrative Agent, the Required Lenders shall have the right, ~~with~~ subject to Section 9.18 and the consent of the Borrower (other than during the existence of an Event of Default under clause (a), (b), (h) or (i) of Article VII), which consent of the Borrower shall not be unreasonably ~~withheld~~ withheld, delayed or ~~delayed)~~conditioned, to appoint a successor, which shall be a Farm Credit Lender or a bank (or an Affiliate of a Farm Credit Lender or a bank). 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 intent to resign, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a ~~successor Administrative Agent~~successor, subject to Section 9.18 and the consent of the Borrower (other than during the existence of an Event of Default under clause (a), (b), (h) or (i) of Article VII), which consent of the Borrower shall not be ~~a bank with an office in New York~~unreasonably withheld, ~~New York,~~ delayed or ~~an Affiliate of any such bank~~conditioned. 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 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 by ~~Holdings,~~ the Borrower and such successor. 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~~other Agents, the ~~Issuing Banks~~ Lenders 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~~ without any other further act or deed on the part of ~~maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the~~ such 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~~ or 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)other Person, 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~~Lender. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article 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~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative Agent, ~~the Arrangers~~ any Arranger or any other ~~Lender or Issuing Bank~~Lender, 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, ~~the Arrangers~~ any Arranger or any other ~~Lender or Issuing Bank~~Lender, 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. CHAR1\1536846v3 CHAR1\1539728v3 * For voting purposes only. Percentages are approximate due to rounding. ** After giving effect to an assignment on the Effective Date by Northwest Farm Credit Services, PCA of $70,000,000.00 of its Commitment to CoBank, FCB (which will become a Lender via an Assignment and Assumption dated and effective as of the Effective Date), but before giving effect to the participations on the Effective Date. *** After giving effect to the Effective Date assignment and the Effective Date participations. Each Lender, by delivering its signature page to this Agreement ~~on the Effective Date~~ and funding its Loans on the ~~Funding~~ Effective Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, ~~this Agreement and~~ each ~~other~~ 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 Funding~~ Date. ~~Except with respect~~ Notwithstanding anything herein to the ~~exercise~~ contrary, neither any Arranger nor any Person named on the cover page of ~~setoff rights of any Lender in accordance with Section 9.08~~ this Agreement as a Syndication Agent or ~~with respect to~~ a ~~Lender’s right to file a proof of claim in an insolvency proceeding, no Secured Party~~ Documentation Agent shall have any ~~right individually to realize upon any of the Collateral~~ duties, responsibilities 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document (except in its capacity, as ~~expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral~~applicable, ~~each Secured Party that is a party to any such Hedging Agreement shall be deemed to have appointed~~ as the Administrative Agent ~~to serve as administrative agent~~ or a Lender), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article (other than provisions of this Article providing the Borrower with a consent right, all of which shall also be for the benefit of the Borrower) are solely for the benefit of the Administrative Agent and ~~collateral agent under~~ the ~~Loan Documents~~ Lenders, and ~~agreed to be bound by~~ the ~~Loan Documents~~ Borrower shall not have any rights as a ~~Secure~~third party beneficiary of any such provisions.

Appears in 1 contract

Sources: Term Loan Agreement (Weyerhaeuser Co)

The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, Citibank, N.A. is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably ~~appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ authorizes the Administrative Agent to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Administrative Agent by the terms ~~of the Loan Documents~~and provisions hereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other amounts due to the ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Event of Default of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference Company pursuant to ~~the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used~~ this Agreement as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 received by the Administrative Agent~~, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as~~ . Notwithstanding any provision to the ~~financial advisor or~~ contrary elsewhere in ~~any other advisory capacity for and generally engage in any kind of business with Holdings~~this Agreement, the ~~Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The~~ Administrative Agent shall not have any duties or ~~obligations~~ responsibilities, except those expressly set forth ~~in the Loan Documents~~herein, or any fiduciary relationship with any Lender, and ~~its duties hereunder~~ no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to read into this Agreement or any other Loan Document or ~~applicable law~~otherwise exist against the Administrative Agent. Notwithstanding the foregoing, ~~and (c) except as expressly set forth in~~ none of the Syndication Agent, Joint Lead Arrangers or Bookrunners 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 a Lender. Neither the Administrative Agent nor any of its respective affiliates nor any of its respective affiliates’ directors, officers, employees, agents, advisors or attorneys-in-fact shall ~~not have any duty to disclose, and shall not~~ be liable for any action taken or omitted to be taken by any of them except for its or his or her own gross negligence or willful misconduct (as determined by a final and non-appealable decision of a court of competent jurisdiction), or be responsible for any statement, warranty or representation herein or in any document delivered in connection herewith or the ~~failure~~ contents of any document delivered in connection herewith, or be required to ~~disclose,~~ ascertain or to make any ~~information relating to Holdings,~~ inquiry concerning the ~~Borrower, any Subsidiary~~ performance or ~~any other Affiliate~~ observance by the Company of any of the ~~foregoing that is communicated to~~ terms, conditions, covenants or ~~obtained by the Person serving as Administrative Agent or any of its Affiliates~~ 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 or for the failure of the Company to perform its obligations under this Agreement. The Administrative Agent may deem and treat the Lender which makes any ~~action taken~~ Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Administrative Agent shall in all cases be fully protected in acting, or ~~not taken~~ refraining from acting, in accordance with written instructions signed by ~~it with the consent or at the request of~~ the Required Lenders (and, except as otherwise specifically provided herein, such instructions and any action or ~~such other number or percentage of the Lenders as~~ inaction pursuant thereto shall be ~~necessary, or as~~ binding on all the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)Lenders. The Administrative Agent shall be ~~deemed not~~ fully justified in failing or refusing to ~~have knowledge of~~ take any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the ~~occurrence~~ Required Lenders (or, if so specified by this Agreement, all Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by them by reason of taking or continuing to take any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other Loan Document, other than to confirm receipt of items expressly required to be delivered to the such action. The Administrative Agent ~~or satisfaction~~ shall, in the absence of ~~any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein~~ knowledge to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely, and shall not incur~~ rely on any ~~liability for relying, upon any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing (including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it in good faith to be genuine and correct and to have been signed or sent ~~or otherwise authenticated~~ by the proper 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)~~Persons. The Administrative Agent also 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 (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 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, Neither the Administrative Agent ~~may presume that such condition is satisfactory to such Lender~~ nor any of its respective directors, officers, employees or ~~such Issuing Bank unless the Administrative Agent~~ agents shall have ~~received notice~~ any responsibility to the ~~contrary from such~~ Company on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or ~~such Issuing Bank prior~~ to any Lender on account of the ~~making~~ failure of ~~such Loan~~ or ~~the issuance~~ delay in performance or breach by any other Lender of ~~such Letter~~ any of ~~Credit~~its respective obligations hereunder or in connection herewith. The Administrative Agent may ~~consult with~~ execute any and all duties hereunder by or through its Affiliates, agents, attorneys-in-fact or employees and shall be entitled to rely upon the advice of legal counsel selected by them (~~who may be~~ including counsel ~~for~~ to the ~~Borrower~~Company), independent accountants and other experts selected by ~~it,~~ them 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 them in accordance with the advice of ~~any~~ such counsel~~, accountants or experts~~. The Lenders hereby acknowledge that the Administrative Agent ~~may perform~~ shall be under no duty to take any ~~of and all its duties and exercise its rights and powers hereunder or under any other Loan Document~~ discretionary action permitted to be taken by ~~or through any one or more sub-agents appointed by~~ it pursuant to the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this ~~Article~~ Agreement unless it shall ~~apply~~ be requested in writing to ~~any such sub-agent and to~~ do so by the Related Parties of the Administrative Agent and any such sub-agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative AgentRequired Lenders. The Administrative Agent shall not be ~~responsible for~~ deemed to have knowledge or notice of the ~~negligence or misconduct~~ occurrence of any ~~sub-agents except~~ Default or Event of Default unless the Administrative Agent has received notice from a Lender or the Company referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the ~~extent that a court of competent jurisdiction determines in a final and nonappealable judgment~~ event that the Administrative Agent ~~acted~~ receive such a notice, the Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such action with ~~gross negligence~~ respect to such Default or ~~wilful misconduct~~ Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all Lenders); provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the ~~selection~~ best interests of ~~such sub-agents~~the Lenders. ~~Subject~~ Subject, in the case of a resignation of the Administrative Agent, to the ~~terms~~ appointment and acceptance of ~~this paragraph~~a successor Administrative Agent as provided below, the Administrative Agent may resign at any time ~~from its capacity as such~~by notifying the Lenders and the Company. ~~In connection with~~ Upon any such ~~resignation,~~ resignation of the Administrative ~~Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks and the Borrower. Upon receipt of any such notice of resignation~~Agent, the Required Lenders shall have the ~~right, with the consent of the Borrower (which shall not be unreasonably withheld or delayed),~~ right to appoint a ~~successor~~successor Administrative Agent acceptable to the Company. 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 ~~intent to resign~~resignation (or such earlier day as shall be agreed by the Required Lenders and the Company (the “Resignation Effective Date”), then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative Agent (including, for the avoidance of doubt, a successor Administrative Agent, ) which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such 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 and under the other Loan Documents~~hereunder. ~~The fees payable by Holdings and the Borrower to~~ Whether or not a successor ~~Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by Holdings~~has been appointed, the Borrower and such successor. 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 become effective in accordance with ~~this paragraph (it being understood and agreed that~~ such notice on 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 BankResignation Effective Date. ~~Following the effectiveness of~~ After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and ~~Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ SECTION 8.5 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 them hereunder, the 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 ~~respect~~ any kind of business with the ~~matters referred to in~~ Company or any Subsidiary or other Affiliate thereof as if it were not the ~~proviso under clause (a) above~~Administrative Agent. Each Lender agrees (i) to reimburse the Administrative Agent, on demand, in the amount of its Applicable Percentage of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and ~~each Issuing Bank~~ compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Company and (ii) to indemnify and hold harmless the Administrative Agent and any of its respective 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 the Administrative Agent in its capacity as such 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 Company; 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 such Administrative Agent or any of its directors, officers, employees or agents as determined by a final and non-appealable decision of a court of competent jurisdiction. Each Lender acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the Related Parties of any of the foregoing~~their respective affiliates or their or their respective affiliates’ directors, officers, employees, advisors or attorneys-in-fact and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender ~~and each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the Related Parties of any of the foregoing~~their respective affiliates or their or their respective affiliates’ directors, officers, employees, advisors or attorneys-in-fact 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~~ Agreement or any related agreement or any document furnished hereunder or thereunder. ~~Each Lender~~Except for notices, ~~by delivering its signature page to this Agreement on the Effective Date~~ reports and ~~funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any~~ other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document documents expressly required to be ~~delivered to, or be approved~~ furnished to the Lenders by ~~or satisfactory to~~the Administrative Agent hereunder, the Administrative Agent shall not have any duty or ~~the Lenders on the Effective Date or the Funding Date. Except with respect~~ responsibility to ~~the exercise of setoff rights of~~ provide any Lender ~~in accordance~~ with ~~Section 9.08~~ any credit or ~~with respect to a Lender’s right to file a proof of claim in an insolvency proceeding~~other information concerning the business, ~~no Secured Party shall have any right individually to realize upon any~~ operations, property, condition (financial or otherwise), prospects or creditworthiness of the ~~Collateral~~ Company or ~~to enforce~~ any ~~Guarantee~~ affiliate of the ~~Obligations, it being understood and agreed~~ Company that ~~all powers, rights and remedies under~~ may come into the ~~Loan Documents may be exercised solely by the Administrative Agent on behalf~~ possession 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 of its officers, directors, employees, agents, advisors, attorneys in fact or affiliates. 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 its Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Company, 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 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 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 Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, 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 Commitments and this Agreement; or (iv) such other representation, warranty and covenant as may be ~~the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and~~ agreed in writing between the Administrative Agent, in its sole discretion, and such Lender. In addition, unless either (1) sub-clause (i) in the immediately preceding paragraph 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 paragraph, such Lender further (x) represents and warrants, as ~~agent for and representative~~ of the ~~Secured Parties~~ date such Person became a Lender party hereto, to, and (~~but not any~~ y) covenants, from the date such Person became a Lender ~~or Lenders in its or their respective individual capacities unless~~ party hereto to the ~~Required Lenders shall otherwise agree in writing) shall be entitled~~date such Person ceases being a Lender party hereto, for the ~~purpose~~ benefit of, the Administrative Agent and its Affiliates, and not, for the avoidance of ~~bidding and making settlement~~ doubt, to or ~~payment~~ for the benefit of the ~~purchase price for all or~~ Company, that neither the Administrative Agent nor any ~~portion~~ of its Affiliates is 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 ~~Collateral sold at~~ Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of 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~~ rights by the Administrative Agent ~~on behalf of~~ under this Agreement, any Loan Document or any documents related hereto or thereto). The Administrative Agent hereby informs the ~~Secured Parties at~~ Lenders that such ~~sale~~ Person is not undertaking to provide impartial investment advice, or ~~other disposition. In furtherance of the foregoing and not~~ to give advice in ~~limitation thereof~~a fiduciary capacity, ~~no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided~~ transactions contemplated hereby, and that such Person has a financial interest in the ~~Collateral~~ transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Commitments and this Agreement~~. By accepting~~ , (ii) may recognize a gain if it extended the ~~benefits of~~ Loans or the ~~Collateral~~Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, ~~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 Secure~~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 transacti

Appears in 1 contract

Sources: Term Loan Credit Agreement (Bristol Myers Squibb Co)

The Administrative Agent. ~~Each of~~ In order to expedite the ~~Lenders and~~ transactions contemplated by this Agreement, the ~~Issuing Banks hereby irrevocably appoints the entity~~ Person named ~~as Administrative Agent~~ in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders. Each of the Lenders and ~~its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ each assignee of any Lender hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (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 ~~extent required under the laws~~ Lenders hereunder, and promptly to distribute to each Lender its proper share of ~~any jurisdiction other than the United States~~ each payment so received; (b) to give notice on behalf of ~~America,~~ each of the Lenders ~~and~~ to the ~~Issuing Banks hereby grants to~~ Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (~~Company or any ~~similar term) herein~~ other Borrower pursuant to this Agreement or ~~in any~~ the other Loan ~~Document with reference~~ Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, the Administrative Agent is in its individual capacity and not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and ~~such Person~~ the Administrative Agent and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ any of the ~~Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries or other ~~Affiliate~~ Affiliates thereof as if ~~such Person~~ it were not the Administrative ~~Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02); 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower, any Subsidiary or any other Affiliate of~~ any of the ~~foregoing~~ Borrowers or any of their Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 10.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ a Borrower (in which case the ~~Borrower, a Lender or an Issuing Bank~~Administrative Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative 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~~ agents, which may include any of its branches or affiliates, appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Company. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the ~~Borrower~~ Company (~~which shall~~ not to be unreasonably ~~withheld~~ withheld, conditioned or ~~delayed~~delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. In addition, if the Administrative Agent is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the Company and the Administrative Agent, to remove the Administrative Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld, conditioned or delayed and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. If (a) no successor to a retiring 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 notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such ~~bank~~bank or (b) no successor to a removed Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days following the issuance of a notice of removal, the removal shall become effective on such 30th day and on such date the Required Lenders shall succeed as Administrative Agent to such removed Administrative 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 or removed Administrative Agent, as the case may be, and ~~the~~ such retiring or removed Administrative Agent shall be discharged from its duties and obligations ~~hereunder and under the other Loan Documents~~hereunder. 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 by Holdings, the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity~~ or removal, as ~~such~~the case may be, hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 10.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, as the case may be. 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 and in respect of the matters referred to in the proviso under clause~~ Agent. Each Lender agrees (a) ~~above~~to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on the amount of its Loans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders by the Administrative Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, that shall not have been reimbursed by the Company or any other Borrower and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, 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 Administrative Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Company or any other Borrower; provided that no Lender shall be liable to the Administrative Agent or any such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are determined to have resulted from the gross negligence or willful misconduct of the Administrative Agent, and any of its Related Parties or any of their respective directors, officers, employees or agents. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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. None of the Lenders identified on the facing page or signature pages of this Agreement or elsewhere herein as a “syndication agent” or “documentation agent” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. 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 Company or any Subsidiary, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans or the Commitments, (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 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 Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, 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, ~~by delivering its signature page~~ 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 Commitments and this ~~Agreement on the Effective Date and funding its Loans on the Funding Date~~Agreement, or ~~delivering~~ (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its ~~signature page~~ sole discretion, and such Lender. In addition, unless sub-clause (i) in the immediately preceding paragraph is true with respect to ~~an Assignment and Assumption or any other Loan Document pursuant to which it shall become~~ a Lender ~~hereunder~~or such Lender has not provided another representation, ~~shall be deemed to have acknowledged receipt of~~warranty and covenant as provided in sub-clause (iv) in the immediately preceding paragraph, such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and ~~consented~~ (y) covenants, from the date such Person became a Lender party hereto to ~~and approved~~the date such Person ceases being a Lender party hereto, ~~this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~for the benefit of, the Administrative ~~Agent~~ Agent, the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the ~~Lenders on~~ benefit of the ~~Effective Date~~ Company or any Subsidiary, that: (i) none of the ~~Funding Date. Except~~ Administrative Agent, the Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of ~~setoff~~ any 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 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 under this Agreement, any Loan Document or any documents related to hereto or thereto), (ii) the Person making the investment decision on behalf of such Lender with respect to the ~~Secured Parties in accordance with the terms thereof. In the event~~ entrance into, participation in, administration of ~~a foreclosure by the Administrative Agent on any~~ and performance of the ~~Collateral pursuant to~~ Loans, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a ~~public or private sale~~ bank, an insurance carrier, an investment adviser, a broker-dealer or other ~~disposition~~person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), (iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the ~~Administrative Agent or any Lender may be~~ Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the ~~purchaser or licensor of any or all~~ Obligations), (iv) the Person making the investment decision on behalf of such ~~Collateral at any such sale~~ Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and (v) no fee or other ~~disposition, and~~ compensation is being paid directly to the Administrative Agent, ~~as agent for and representative of~~ the ~~Secured Parties (but not~~ Arrangers or any ~~Lender or Lenders in its or~~ their respective ~~individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled,~~ Affiliates 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,~~ investment advice (as opposed 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging Obligations will create (or be deemed to create~~services) 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secureconnect

Appears in 1 contract

Sources: Credit Agreement (Automatic Data Processing Inc)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints (and each other Secured Party, whether or not a party hereto, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, will be deemed to hereby appoint) the entity named as Administrative Agent in the heading of this Agreement ~~and its successors~~ to serve as administrative agent and collateral agent under the Loan ~~Documents~~ Documents, and authorizes (and each other Secured Party, whether or not a party hereto, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, will be deemed to hereby authorize) the Administrative Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the ~~laws~~ Laws of any jurisdiction other than the United States of America, each of the Lenders and the Issuing Banks hereby grants (and each other Secured Party, whether or not a party hereto, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, will be deemed to hereby grant) to the Administrative Agent any required powers of attorney to execute any Security Document governed by the ~~laws~~ Laws of such jurisdiction on such Lender’s or ~~such~~ Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, ~~own securities of,~~ 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 Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks~~Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law~~Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise~~ willful misconduct, as determined by a court of competent jurisdiction by a final and ~~nonappealable~~ non-appealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the Borrower, a Lender or 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder or~~ thereunder or in connection ~~herewith or~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 ~~be liable for, or be responsible for~~ have any ~~loss, cost or expense suffered by the Borrower or~~ liability arising from any ~~Lender as a result of, any determination~~ confirmation of the Revolving Exposure or the component amounts ~~thereof or of the Weighted Average Yield~~thereof. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper 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 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 (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 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~~ issuance 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 ~~such~~ Issuing Bank unless the Administrative Agent shall have received written notice to the contrary from such Lender or ~~such~~ 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 their duties and exercise their rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation (so long as no Event of Default has occurred and is continuing) with the ~~consent of the Borrower (which shall not be unreasonably withheld or delayed)~~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 intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a ~~bank with an office in New York, New York,~~ financial institution or an Affiliate of ~~any such bank~~a financial institution. 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 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 by ~~Holdings,~~ the Borrower and such successor. 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~~Bank until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Article VIII. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender or other Secured Party (which terms include, for purposes of this Article VIII, any Issuing Bank) an amount equivalent to any applicable withholding Tax. If any payment has been made to any Lender or other Secured Party by the Administrative Agent without the applicable withholding Tax being withheld from such payment and the Administrative Agent has paid over the applicable withholding Tax to the Internal Revenue Service or any other Governmental Authority, or the 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 any Lender or any other Secured Party because the appropriate form was not delivered or was not properly executed or because such Lender or other Secured Party failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding Tax ineffective or for any other reason, such Lender or other Secured Party, as the case may be, 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. Each Lender and ~~each~~ Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent, ~~the Arrangers~~ 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 ~~each~~ Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, ~~the Arrangers~~ 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 ~~on the Effective Date~~ and funding its Loans on the ~~Funding~~ Restatement Effective Date, or delivering its signature page to an Assignment and Assumption or ~~any other Loan Document~~ 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, ~~this Agreement and~~ each ~~other~~ 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 Restatement Effective ~~Date or the Funding~~ Date. ~~Except with respect to the 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~~ 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, at the direction of the Required Lenders, 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. ~~In furtherance of the foregoing and~~ Each Secured Party, whether or not ~~in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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~~ hereto, will be deemed, by its acceptance of ~~any Collateral or of the obligations of any Loan Party under this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. By accepting~~ the benefits of the ~~Collateral, each~~ Collateral and of the Guarantees of the 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 SecureObligati

Appears in 1 contract

Sources: Credit Agreement (Bentley Systems Inc)

The Administrative Agent. (a) Each of the Lenders and the Issuing Banks hereby irrevocably appoints ~~the entity named~~ Bank of America as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors to serve as administrative~~ agent and ~~collateral agent under the Loan Documents and~~ authorizes ~~the Administrative Agent~~ Bank of America to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of hereof and the other 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ irrevocably appoints Bank of America as its collateral agent and authorizes Bank of America to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative Agent any required powers of attorney to execute any Security Document governed~~ collateral agent by the ~~laws~~ terms hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the collateral agent, the Lenders and the Issuing Bank, and the Borrower shall have no rights as a third party beneficiary of any of such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent”~~ provisions, except as expressly set forth in subparagraph (~~or any similar term~~f) ~~herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied~~ below. (~~or express~~b) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. 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~~ the term “Lender” or “Lenders” shall, 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~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings, the~~ a Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks.~~ Lenders. (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~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 ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary,~~ expressly provided for herein or as by the ~~Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the~~ other Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, ; and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided ~~in the Loan Documents~~herein) or in the absence of its own bad faith, gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice describing such Default thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower~~Company, a Lender or an the 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document~~ therein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. . (d) The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the ~~issuance, extension, renewal or increase~~ issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an the Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or ~~such~~ the Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or ~~such~~ the 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. . (e) The Administrative Agent may perform any of 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 of and all ~~their~~ of its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (f) The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may ~~resign~~ at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall~~ give notice of its ~~intent to resign~~ resignation to the Lenders, the Issuing ~~Banks~~ Bank and the ~~Borrower~~Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower and (unless an Event of Default under clause (a) or (b), (h) or (i) of Article VII shall have occurred and be continuing) with the consent of the ~~Borrower~~ Company (which consent of the Company shall not be unreasonably withheld or delayed), 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 thirty (30) days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent ~~may,~~ may on behalf of the Lenders and the Issuing ~~Banks~~Bank, appoint a successor Administrative ~~Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon~~ Agent meeting the ~~acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all~~ qualifications set forth above; provided that if the ~~rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring~~ Administrative Agent shall ~~be discharged from its duties and obligations hereunder and under~~ notify the ~~other Loan Documents. The fees payable by Holdings~~ Company and the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by Holdings, the Borrower and such successor. Notwithstanding the foregoing, in the event Lenders that no ~~successor Administrative Agent shall have been so appointed and shall have~~ qualifying Person has accepted such ~~appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign~~appointment, ~~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~~ then such resignation ~~stated~~ shall nonetheless become effective in accordance with such ~~notice,~~ notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan ~~Documents; provided that, solely for purposes~~ Documents (except that in the case of ~~maintaining~~ any collateral security ~~interest granted to~~ held by the Administrative Agent on behalf of the Lenders or the Issuing Bank under any ~~Security Document for the benefit~~ of the ~~Secured Parties~~Loan Documents, 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~~ collateral security until such time as a successor Administrative Agent is ~~appointed~~ appointed) and ~~accepts such appointment in accordance with this paragraph~~ (~~it being understood~~ 2) all payments, communications and ~~agreed that~~ determinations provided to be made by, to or through the ~~retiring~~ Administrative Agent shall ~~have no duty~~ instead be made by or ~~obligation~~ to ~~take any further action under any Security Document~~each Lender and the Issuing Bank directly, ~~including any action required to maintain the perfection of any~~ until such ~~security interest), and (b)~~ time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent~~; provided that (i) all payments required to be made hereunder or under any other Loan Document to~~ , and the ~~Administrative Agent for the account of any Person other than the~~ retiring Administrative Agent shall be ~~made directly~~ discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Company to ~~such Person and (ii) all notices and other communications required or contemplated to be given or made to the~~ a successor Administrative Agent shall ~~also directly~~ be ~~given or made~~ the same as those payable to ~~each Lender~~ its predecessor unless otherwise agreed between the Borrower and ~~each Issuing Bank~~such successor. ~~Following~~ After the ~~effectiveness of the~~ retiring Administrative Agent’s resignation ~~from its capacity as such~~hereunder and under the other Loan Documents, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 the retiring Administrative Agent was acting as Administrative Agent. Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as Issuing Bank and ~~in respect~~ Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition of “Defaulting Lender,” 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 the Company in consultation with the Lenders shall, unless an Event of Default shall have occurred and be continuing, in which case the Required Lenders in consultation with the Company shall, 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, without the consent of the Borrower (not to be unreasonably withheld), the Required Lenders shall not be permitted to select a successor that is not a U.S. financial institution described in Treasury Regulation Section 1.1441-1(b)(2)(ii) or a U.S. branch of a foreign bank described in Treasury Regulation Section 1.1441-1(b)(2)(iv)(A). If no such successor shall have been appointed by the Borrower or the Required Lenders, as applicable, and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with notice on the Removal Effective Date. (g) Each Lender and ~~each~~ the Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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~~ the Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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,~~ . (h) To the extent required by ~~delivering its signature page to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or~~ any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toapplicable Laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the ~~Lenders on~~ provisions of Section 2.16, each Lender shall indemnify and hold harmless the ~~Effective Date~~ 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 ~~Funding Date~~Administrative Agent by the 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, 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). ~~Except with respect~~ A certificate as to the ~~exercise~~ amount of ~~setoff rights of~~ such payment or liability delivered to 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 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~~shall be conclusive absent manifest error. ~~In the event of a foreclosure by~~ Each Lender hereby authorizes 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 set off and apply any ~~of the Loan Document Obligations as a credit on account of the purchase price for~~ and all amounts at any ~~collateral payable by the Administrative Agent on behalf of the Secured Parties at~~ time owing to such sale or other disposition. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 Lender under this Agreement or any other Loan Document ~~except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party to~~ against any ~~such Hedging Agreement shall be deemed to have appointed~~ amount due the Administrative Agent ~~to serve as administrative agent~~ under this clause (h). The agreements in this clause (h) 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 Commitments and ~~collateral agent under~~ the ~~Loan Documents~~ repayment, satisfaction or discharge of all other Obligations. For the avoidance of doubt, a “Lender” shall, for purposes of this clause (h), include any Swingline Lender and ~~agreed to be bound by the Loan Documents as a Secure~~any Issuing Bank.

Appears in 1 contract

Sources: Restatement Agreement (Constellation Brands, Inc.)

The Administrative Agent. ~~Each~~ In order to expedite the transactions contemplated by this Agreement, JPMorgan is hereby appointed to act as Administrative Agent on behalf of the Lenders and the Issuing ~~Banks~~ Bank. Each of the Lenders and each assignee of any such Lender hereby irrevocably ~~appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Administrative Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent is hereby expressly authorized by the Lenders and the Issuing Bank, without hereby limiting any implied authority, (a) to ~~the extent required under the laws of any jurisdiction other than the United States of America, each~~ receive on behalf of the Lenders and the Issuing ~~Banks hereby grants~~ Bank all payments of principal of and interest on the Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender or the Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney~~ all notices, financial statements and other materials delivered by either Borrower pursuant to ~~execute any Security Document governed~~ this Agreement or the other Loan Documents as received by the ~~laws~~ Administrative Agent. Neither the Administrative Agent nor any of its directors, officers, employees or agents shall be liable as such ~~jurisdiction on such Lender’s~~ for any action taken or ~~such Issuing Bank’s behalf. It is understood and agreed that the use~~ omitted by any of ~~the term “agent” (~~them except for its or his own gross negligence or willful misconduct, or be responsible for any ~~similar term)~~ 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 each Borrower or any other Loan ~~Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine~~ Party of any ~~applicable law. Instead~~of the terms, ~~such term is used as a matter of market custom and is intended to create~~ conditions, covenants or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or agreements contained in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing BanksLoan Document. The Administrative Agent shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement, any other Loan Document, or any other document, instrument or agreement. 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 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 on any instrument 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. Neither the Administrative Agent nor any of its directors, officers, employees or agents shall have any ~~duties~~ responsibility to either Borrower on account of the failure of or delay in performance or breach by any Lender or the Issuing Bank of any of its obligations ~~except those expressly set forth~~ hereunder or to any Lender or the Issuing Bank on account of the failure of or delay in performance or breach by any other Lender or the Issuing Bank or either Borrower of any of their respective obligations hereunder or under any other Loan ~~Documents,~~ Document or in connection herewith or therewith. The Administrative Agent may execute any and ~~its~~ all duties hereunder by or through agents or employees and shall be ~~administrative~~ entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in ~~nature~~good faith by it in accordance with the advice of such counsel. ~~Without limiting the generality of the foregoing,~~ The Lenders hereby acknowledge that (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 and (b) the Administrative Agent shall not ~~have~~ be under any duty to take any discretionary action or permitted to ~~exercise any discretionary power, except discretionary rights and powers expressly contemplated~~ be taken by it pursuant to the ~~Loan Documents that the Administrative Agent is required to exercise as directed~~ provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agentsLenders. Subject to the ~~terms~~ appointment and acceptance of ~~this paragraph~~a successor Administrative Agent as provided below, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the ~~Borrower~~Borrowers. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the ~~right, with the consent of the Borrower (which shall not be unreasonably withheld or delayed),~~ right to appoint a ~~successor~~successor reasonably satisfactory to 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such 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 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 by Holdings, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secureobligations

Appears in 1 contract

Sources: Credit Agreement (El Paso Electric Co /Tx/)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and authorizes the Administrative Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. Without limiting the generality of the foregoing, the Lenders and the Issuing Banks hereby expressly authorize the Administrative Agent to execute any and all documents (including releases and intercreditor agreements) with respect to the Collateral (including any amendment, supplement, modification or joinder with respect thereto) and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents and acknowledge and agree that any such action by the Administrative Agent shall bind the Lenders. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, 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 Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by ~~Holdings,~~ the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be unreasonably withheld or delayed)~~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 intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by ~~Holdings,~~ the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 ~~on the Effective Date~~ and funding its Loans on the ~~Funding~~ Effective Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding~~ Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging Obligations ~~will create (or be deemed to create)~~ no arrangements in ~~favor~~ respect of ~~any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of~~ Cash Management Services the obligations ~~of any Loan Party~~ under ~~this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral~~which constitute Secured Cash Management Obligations, ~~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 Secure~~no Customer Financing Guara

Appears in 1 contract

Sources: Credit Agreement (Chemours Co)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 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~~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. In ~~addition,~~ addition to the ~~extent required under~~ rights, privileges and immunities in the ~~laws~~ Guarantee and Security Agreement, the Collateral Agent shall be entitled to all rights, privileges, immunities, exculpations and indemnities 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~~ for such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ purpose and ~~agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with~~ each reference to the Administrative Agent ~~is not intended~~ in this Article VIII shall be deemed to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting partiesinclude the Collateral Agent. The Person serving as the Administrative Agent hereunder and under any other Loan Documents 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. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to, make investments in and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower~~ Obligors (or any Subsidiary or other Affiliate ~~thereof as if such Person were not the Administrative Agent hereunder and~~ thereof) for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. ~~The Administrative~~ No Agent shall ~~not~~ have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. Without limiting the generality of the foregoing, (a) ~~the Administrative~~ no Agent shall ~~not~~ be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative~~ no Agent shall ~~not~~ have any duty to take any discretionary action or to exercise any discretionary ~~power~~powers, ~~except~~ except, solely in the case of the Administrative Agent, discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of and pursuant to specific instructions in writing to do so delivered by the Required Lenders (or such other number or percentage of ~~the~~ Lenders as ~~shall be necessary,~~ is expressly provided for herein or as by the ~~Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the~~ other Loan Documents); provided that the Administrative Agent ~~shall~~ is not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, including, for the avoidance of doubt, any action that may be in violation of the automatic stay under, or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of the Bankruptcy Code or any other applicable liquidation, conservatorship, bankruptcy, insolvency, reorganization or similar debtor relief laws of the United States or other applicable jurisdictions, and (c) except as expressly set forth herein and in the other Loan Documents, ~~the Administrative~~ no Agent shall ~~not~~ have any duty to disclose, ~~and~~ nor shall ~~not~~ any Agent be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent, the Collateral Agent or any of ~~its~~ their respective Affiliates in any capacity. ~~The Administrative~~ No 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, or as ~~the Administrative~~ such Agent shall believe in good faith to shall be necessary, including under the circumstances as provided in ~~the Loan Documents~~Section 9.02 or Article VIII) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct ~~(such absence to be presumed unless otherwise~~ as determined by a court of competent jurisdiction by a final ~~and nonappealable~~ non-appealable judgment). ~~The Administrative~~ No Agent shall be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to ~~the Administrative~~ such Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~Lender, and ~~the Administrative~~ no Agent shall ~~not~~ be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, (v) the creation, perfection or priority of any Lien purported to be created by the Loan Documents or the value or sufficiency of any Collateral, or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to ~~the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ such Agent. Notwithstanding anything ~~herein~~ to the ~~contrary~~contrary contained herein, in no event shall the Administrative Agent be liable or responsible in any way or manner for the failure to obtain or receive an external value in respect of Unquoted Investments under Section 5.12(b)(ii)(B). 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 ▇▇▇▇▇▇▇. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be ~~liable for~~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 ~~be responsible for~~ disclosure of confidential information, to any ~~loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield~~Disqualified Lender. ~~The Administrative~~ Each Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. ~~The Administrative~~ Each Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by or on behalf of the proper 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)~~Persons, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. 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,~~ Loan that by its terms must be fulfilled to the satisfaction of a ~~Lender or an Issuing Bank~~Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender ~~or such Issuing Bank~~ unless the Administrative Agent ~~shall have~~ has received notice to the contrary from such Lender ~~or such Issuing Bank~~ prior to the making of such ~~Loan or the issuance of such Letter of Credit~~Loan. ~~The Administrative~~ Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. ~~The Administrative~~ Each Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by ~~the Administrative~~ such Agent. ~~The Administrative~~ Each Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of ~~the Administrative~~ any Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as ~~Administrative~~ an Agent. ~~The Administrative~~ No Agent shall ~~not~~ be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non-appealable judgment that ~~the Administrative~~ such Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the Administrative~~ Any Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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 ~~intent to resign~~resignation, then the retiring ~~Administrative~~ Agent’s resignation shall nonetheless become effective (except that in the case of any collateral security held by the Collateral Agent ~~may,~~ on behalf of the Lenders ~~and~~ or the Issuing ~~Banks~~Banks under any of the Loan Documents, the retiring or removed Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and (2) in the case of the Administrative Agent, 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 ▇▇▇▇▇▇▇ appoint a successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, or an Affiliate of any such bank~~this paragraph. Upon the acceptance of its appointment as ~~Administrative~~ an 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 retired) Agent and the retiring ~~Administrative~~ Agent shall be discharged from its duties and obligations hereunder ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. ~~Notwithstanding~~ After 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 ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 Agent. Any resignation by ING as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and ~~in respect~~ a Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. Each Lender acknowledges and ~~each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon ~~the Administrative Agent, the Arrangers~~ any Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the ~~Administrative Agent, the Arrangers~~ any Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and other Loan ~~Document~~ Documents or any related agreement or any document furnished hereunder or thereunder. ~~Each Lender, by delivering its signature page to this Agreement on~~ Except as otherwise provided in Section 9.02(b) or the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toSecurity Documents, the Administrative Agent may, with the prior consent of the Required Lenders (or such other number or percentage of Lenders as is expressly provided for herein or the ~~Lenders on~~ other Loan Documents) (but not otherwise), consent to any modification, supplement or waiver under any of the ~~Effective Date~~ Loan Documents, provided that, without the prior consent of each Lender and each Issuing Bank, no Agent shall (except as provided herein or in the ~~Funding Date. Except~~ 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 (excluding (x) any increase in the Loans and Letters of Credit hereunder pursuant to a Commitment Increase under Section 2.08(e), (y) any increase in any Longer-Term Secured Indebtedness or Shorter-Term Secured Indebtedness permitted hereunder and (z) the spreading of such Liens to any Designated Indebtedness or Hedging Agreement Obligations (as defined in the Guarantee and Security Agreement) as provided for in the Guarantee and Security Agreement), 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 ~~exercise of setoff rights of~~ Collateral, except that no such consent shall be required, and each Agent is hereby authorized to (1) release (which such release shall be automatic and require no further action from any ~~Lender~~ party) any Lien covering property 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 Collateral or to enforce~~ 9.02(c) hereof and (2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property 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~~ such Subsidiary Guarantor) in accordance with ~~the terms thereof. In the event of a foreclosure by the Administrative Agent on any~~ Section 9.02(c) and (3) deliver such documents to evidence such releases in accordance with Section 9.02(c) hereof, in each case of the foregoing clauses (1) through (3), (A) if no Designated Indebtedness is outstanding as of such time, automatically and with no further action from any other party and (B) otherwise, subject to any applicable requirements under Section 10.03 of the Guarantee and Security Agreement. Without limiting the foregoing, ING may assign its interest as “Administrative Agent” or “Collateral ~~pursuant~~ Agent” to ~~a public or private sale or~~ an Affiliate without the prior written consent of any other ~~disposition~~party hereto, provided that such Affiliate assumes the obligations of ING as 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~~Agent hereunder, as ~~agent for~~ applicable, arising from and ~~representative of the Secured Parties (but~~ after such assignment. The Lead Arranger shall not ~~any Lender~~ have obligations or ~~Lenders~~ duties whatsoever 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 capacity under this Agreement or any other Loan Document ~~except as expressly provided~~ and shall incur no liability hereunder or thereunder in such capacity, but shall have the ~~Collateral Agreement. By accepting the benefits~~ benefit 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 Secureindemnities provided for hereunder.

Appears in 1 contract

Sources: Senior Secured Credit Agreement (Lord Abbett Private Credit Fund S)

The Administrative Agent. Each of the ~~Lenders~~ Lenders, on behalf of itself and any of its Affiliates that are Secured Parties and the Issuing Banks hereby irrevocably appoints ~~the entity named~~ JPMCB (or any successor appointed pursuant hereto) as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors to serve as administrative~~ agent ~~and collateral agent under the Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Any 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~~Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity, and such Person and its Affiliates may accept deposits from, lend money to~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Loan Parties or any ~~Subsidiary~~ subsidiary of a Loan Party or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder~~ hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and ~~without~~ acknowledge that the Administrative Agent shall not be under any ~~duty~~ obligation to ~~account therefor~~ provide such information to ~~the Lenders or the Issuing Banks~~them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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~~continuing and without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law and instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law~~laws, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower,~~ any ~~Subsidiary~~ Loan Party or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct ~~(such absence to be presumed unless otherwise~~ as determined by the final non-appealable judgment of a court of competent ~~jurisdiction by a final and nonappealable 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 ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings, the Borrower, a Lender~~ any Borrower or ~~an Issuing Bank~~any Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default or Event of Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document or~~ document, (v) the creation, perfection or priority of Liens on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition set forth in Article IV 4 or elsewhere in ~~this Agreement or~~ any ~~other~~ Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or ~~satisfaction~~ (vii) the properties, books or records of any ~~condition that expressly refers to~~ Loan Party or any Affiliate thereof. Each Lender agrees that, except with the ~~matters described therein being acceptable or satisfactory to~~ written consent of the Administrative Agent~~. Notwithstanding anything herein to the contrary~~, ~~the Administrative Agent shall~~ it will not ~~be liable for, or be responsible for~~ take any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 enforcement 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~~ Document, accelerate the Obligations under any Loan Documents, or ~~through~~ exercise any ~~one~~ right that it might otherwise have under applicable law or ~~more sub-agents appointed by the Administrative Agent. The Administrative Agent and~~ otherwise to credit bid at foreclosure sales, UCC sales, any such sub-agent may perform any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties sale under Section 363 of the ~~Administrative Agent and any such sub-agent and shall apply to their respective activities in connection with the syndication~~ Bankruptcy Code or other similar dispositions of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successorCollateral. Notwithstanding the foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan 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 proofs of claim in a case under the ~~event no successor Administrative Agent~~ Bankruptcy Code. No holder of Secured Hedging Obligations shall have ~~been so appointed and shall have accepted such appointment within 30 days after~~ any rights in connection with the ~~retiring Administrative Agent gives notice~~ management or release of ~~its intent to resign, the retiring Administrative Agent may give notice~~ any Collateral or of the ~~effectiveness~~ obligations of ~~its resignation~~ any Loan Guarantor under this Agreement. Notwithstanding anything to the ~~Lenders, the Issuing Banks and the Borrower, whereupon, on the date~~ contrary contained herein or in any 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 Borrowers, the Administrative Agent ~~under any Security Document for the benefit of the~~ and each 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 Party agrees 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 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 Collateral or to enforce ~~any Guarantee of~~ the ~~Obligations~~Loan Guaranty, it being understood and agreed that all powers, rights and remedies ~~under the Loan Documents~~ hereunder may be exercised solely by the Administrative ~~Agent~~ Agent, on behalf of the Secured Parties in accordance with the terms ~~thereof. In~~ hereof and all powers, rights and remedies under the other Loan 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 ~~other disposition,~~ in the ~~Administrative Agent or any Lender may be the purchaser or licensor~~ event of any ~~or all~~ other disposition (including pursuant to Section 363 of ~~such Collateral at any such sale or other disposition~~the Bankruptcy Code), ~~and~~ (A) 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)~~ 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 ~~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 at such sale or other disposition and (B) 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. Each of the Lenders hereby irrevocably authorizes (and by entering into a Hedge Agreement with respect to Secured Hedging Obligations or by entering into documentation in connection with Banking Services Obligations, 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 Lenders: (a) consent to the sale or other disposition of all or any portion of the Collateral free and clear of the Liens securing the Secured Obligations in connection with any such sale or other transfer 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 sale or other 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 sale or other 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 sale, 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 Lender or other Secured Party; it being understood that no Lender shall be required to fund any amounts in connection with any purchase of all or any portion of the Collateral by the Administrative Agent pursuant to the foregoing clauses (b), (c) or (d) without its prior written consent. Each Lender and other 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 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) shall be entitled to be, and shall be, credit bid by the Administrative Agent 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 of any such claim for purposes of the credit bid or purchase so long as the fixing or liquidation of such claim would not unduly delay the ability of the Administrative Agent to credit bid the Secured Obligations or purchase the Collateral at such sale or other disposition. In ~~furtherance~~ the event that the Administrative Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot be estimated without unduly delaying the ability of the ~~foregoing~~ Administrative Agent to credit bid or purchase in accordance with the second preceding paragraph, then those of the contingent or unliquidated claims not so estimated shall be disregarded, shall not be credit bid, and shall not be entitled to any interest in ~~limitation thereof~~the portion or the entirety of the Collateral purchased by means of such credit bid. Each Secured Party whose Secured Obligations are credit bid under clauses (b), ~~no Hedging Agreement~~ (c) or (d) of the ~~obligations under which constitute Secured Hedging Obligations will create~~ third preceding paragraph shall be entitled to receive interests in the Collateral or other asset or assets acquired in connection with such credit bid (or ~~be deemed~~ in the Capital Stock of the acquisition vehicle or vehicles that are used to ~~create~~consummate such acquisition) on a ratable basis in ~~favor~~ accordance with the percentage obtained by dividing (x) the amount of ~~any~~ the Secured Obligations of such Secured Party that ~~is a party thereto any rights~~ were credit bid in ~~connection with~~ such credit bid, sale or other disposition, by (y) the ~~management~~ aggregate amount of all Secured Obligations that were credit bid in such credit bid, sale or ~~release~~ other disposition. In addition, in case of the pendency of any ~~Collateral or of the obligations of~~ proceeding under any ~~Loan Party under this Agreement~~ Debtor Relief Law or any other judicial proceeding relative to any Loan ~~Document except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral~~Party, each Secured Party agrees that ~~is a party to any such Hedging Agreement shall be deemed to have appointed~~ the Administrative Agent ~~to serve~~ (irrespective of whether the principal of any Loan or LC Exposure shall then be due and payable as ~~administrative agent~~ herein expressed or by declaration or otherwise and ~~collateral agent under~~ irrespective of whether the ~~Loan Documents~~ Administrative Agent shall have made any demand on the Borrowers) shall be entitled and ~~agreed to be bound~~ empowered, by ~~the Loan Documents as a Secure~~intervention in such proceeding or otherwise:

Appears in 1 contract

Sources: Abl Credit Agreement (Party City Holdco Inc.)

The Administrative Agent. Each of the Lenders and ~~the~~ each Issuing ~~Banks~~ Bank hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as administrative agent ~~and collateral agent~~ under the Loan ~~Documents~~ Documents, and authorizes the Administrative Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition, to~~ Without limiting the ~~extent required under the laws of any jurisdiction other than the United States of America~~foregoing, each of the Lenders and ~~the~~ each Issuing ~~Banks~~ Bank hereby ~~grants to~~ authorizes 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 such Issuing Bank’s behalf. It is understood~~ and ~~agreed that the use~~ deliver, and to perform its obligations under, each of the ~~term “agent” (or any similar term) herein or in any other~~ Loan ~~Document with reference~~ Documents to which the Administrative Agent is ~~not intended~~ a party, and to ~~connote any fiduciary duty or other implied (or express) obligations arising~~ exercise all rights, powers and remedies that the Administrative Agent may have under ~~agency doctrine of any applicable law. Instead,~~ such ~~term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~Loan Documents. 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~~ Back and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and in performing its function and duties hereunder ~~shall be~~ and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing Banks (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its function and duties are entirely mechanical and administrative in nature. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Company. Without limiting the generality of the foregoing, (a) the Administrative Agent does not assume, and shall not be ~~subject~~ deemed to have assumed, any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender, Issuing Bank or any other ~~implied duties~~Person, other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default has occurred and is ~~continuing~~continuing (and it is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) 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, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), and each Lender and each Issuing Bank agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement, any other Loan Document and/or the transactions contemplated hereby or thereby, (b) as to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not ~~have any duty to take any discretionary action or~~ be required to exercise any ~~discretionary power~~discretion or take any action, ~~except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is~~ but shall be required to ~~exercise as directed~~ act or to refrain from acting (and shall be fully protected in ~~writing by~~ so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); , and, unless and until revoked in writing, such instructions shall be binding upon each Lender and each Issuing Bank, provided that the Administrative Agent shall not be required to take any action that, in its opinion, (i) could expose the Administrative Agent to liability or (ii) be contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided further that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower~~Company, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or (ii) in the absence of its own gross negligence or ~~wilful~~ willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower~~Company, a Lender or 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder or~~ thereunder or in connection ~~herewith or~~ therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or document (including, for the avoidance of doubt, in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by fax, 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 IV or elsewhere in ~~this Agreement or~~ any ~~other~~ Loan Document, other than to confirm receipt of items (which on their face purport to be such 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,~~ 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 functions or 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yieldreasonably assured to it. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper 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 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 (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 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~~ amendment or ~~increase~~ extension 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~~ each Lender or ~~such~~ each Issuing ~~Bank~~ Bank, as applicable, unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the ~~issuance~~ issuance, amendment or extension of such Letter of Credit. 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 treat the payee of any promissory note as its holder until such promissory note has been assigned in accordance with Section 9.04 and may rely on the Register to the extent set forth in Section 9.04(b)(iv). The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit ~~facilities~~ facility provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be unreasonably withheld or delayed)~~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 intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing ~~Banks~~▇▇▇▇▇, appoint a successor Administrative Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. 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 Company and such Person remove such Person as Administrative Agent and, in consultation with the Company, appoint a successor. 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 and under the other Loan Documents. The fees payable by ~~Holdings and~~ the ~~Borrower~~ Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by ~~Holdings,~~ the ~~Borrower~~ Company and such successor. 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~~resign or the Required ▇▇▇▇▇▇▇ give notice to remove the Administrative Agent, the retiring Administrative Agent or, in the case of removal, the Required Lenders may give notice of the effectiveness of its resignation or removal to the Lenders, the Issuing Banks and the ~~Borrower~~Company, whereupon, on the date of effectiveness of such resignation or removal stated in such notice, (a) the retiring or removed 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 or removal from its capacity as such, the provisions of this Article 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 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 was acting as Administrative ~~Agent and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender and each Issuing Bank ~~acknowledges~~ represents and warrants that (a) the Loan Documents set forth the terms of a commercial lending facility, (b) in participating as a Lender, 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 business, and not for the purpose of investing in the general performance or operations of the Company, or for the purpose of purchasing, acquiring or holding any other type of financial instrument such as a security (and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing, such as a claim under the federal or state securities laws), (c) it has, independently and without reliance upon the Administrative Agent, the ~~Arrangers~~ Sustainability Structuring Agent, the Arrangers, the Syndication Agents, the Documentation Agents 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 (d) 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, the ~~Arrangers~~ Sustainability Structuring Agent, the Arrangers, the Syndication Agents, the Documentation Agents 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 SecureL

Appears in 1 contract

Sources: Credit Agreement (Kla Corp)

The Administrative Agent. (a) Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and~~ as its ~~successors to serve as 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 of hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto~~. In addition, to~~ . (b) The Administrative Agent shall also act as the ~~extent required~~ “collateral agent” under the ~~laws of any jurisdiction other than the United States of America~~Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the Issuing Banks hereby ~~grants to~~ irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and such Issuing Bank for purposes of acquiring, holding and enforcing any ~~required~~ and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers ~~of attorney to execute~~ and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any ~~Security Document governed~~ co-agents, sub-agents and attorneys-in-fact appointed by the ~~laws~~ Administrative Agent pursuant hereto for purposes of ~~such jurisdiction~~ holding or enforcing any Lien on ~~such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that~~ the ~~use of the term “agent”~~ Collateral (or any ~~similar term~~portion thereof) ~~herein~~ granted under the Collateral Documents, or in for exercising any ~~other Loan Document with reference~~ rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the ~~Administrative Agent is not intended to connote any fiduciary duty or other implied~~ benefits of all provisions of this Article VIII and Article IX (~~or express~~including Section 9.03, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) ~~obligations arising under agency doctrine of any applicable law. Instead, such term is used~~ as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties.~~ if set forth in full herein with respect thereto. (c) The ~~Person~~ bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such ~~Person~~ bank and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings~~the Parent Entity, ~~the~~ any Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without~~ hereunder. (d) To the extent required by 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 in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by Holdings, the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 Banklaws, the Administrative Agent may ~~presume that such condition is satisfactory~~ withhold from any payment to ~~such~~ any Lender an amount equivalent to any applicable withholding Tax. Without limiting or ~~such Issuing Bank unless~~ expanding the provisions of Section 2.16, each Lender shall indemnify and hold harmless the Administrative Agent ~~shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making~~ 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 ~~such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be~~ any counsel for the ~~Borrower), independent accountants and other experts selected~~ Administrative Agent) incurred by ~~it, and shall not be liable for any action taken~~ or ~~not taken by it in accordance with~~ asserted against the ~~advice of any such counsel, accountants or experts. The~~ Administrative Agent ~~may perform any~~ as a result of ~~and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by~~ the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties failure of the Administrative Agent ~~and~~ to properly withhold any ~~such sub-agent and shall apply~~ Tax from amounts paid to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 such Lender for any ~~Person other than~~ reason (including, 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 be ~~made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to~~ conclusive absent manifest error. Each Lender hereby authorizes 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 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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 off and apply any ~~of the Loan Document Obligations as a credit on account of the purchase price for~~ and all amounts at any ~~collateral payable by the Administrative Agent on behalf of the Secured Parties at~~ time owing to such sale or other disposition. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 Lender under this Agreement or any other Loan Document ~~except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party to~~ against any ~~such Hedging Agreement shall be deemed to have appointed~~ amount due the Administrative Agent ~~to serve as administrative agent~~ under this clause (d). The agreements in this clause (d) 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 Commitments and ~~collateral agent under~~ the ~~Loan Documents~~ repayment, satisfaction or discharge of all other Obligations. The term “Lender” shall, for purposes of this clause (d), include any Issuing Bank and ~~agreed to be bound by the Loan Documents as a Secure~~any Swingline Lender.

Appears in 1 contract

Sources: Credit Agreement (Delphi Technologies PLC)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non-appealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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 ~~intent to resign~~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 ~~and~~ or the Issuing ~~Banks~~Banks 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 (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 ▇▇▇▇▇▇▇ appoint a successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. Any resignation by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Banking Corporation as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and ~~in respect~~ a Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. Each Lender ~~and each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant Documents to which it ~~shall become~~ is a ~~Lender hereunder, shall be deemed~~ party. Except as otherwise provided in Section 9.02(b) with respect to ~~have acknowledged receipt of, and consented to and approved,~~ this ~~Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~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 ~~Lenders on~~ Loan Documents, provided that, without the ~~Effective Date~~ prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the ~~Funding Date. Except~~ 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 ~~exercise~~ Collateral, 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 ~~setoff rights~~ either a disposition of property (including, without limitation, any ~~Lender~~ property subject to a participation or repurchase transaction) not prohibited 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) in accordance with Section ~~9.08~~ 9.02(c) and (3) spread Liens to any Designated Indebtedness or ~~with respect to a Lender’s right to file a proof of claim~~ Hedging Agreement Obligations (as such terms are defined in ~~an insolvency proceeding, 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~~ Security Agreement) 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, Guarantee 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Security Agreement. 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 Secure.

Appears in 1 contract

Sources: Senior Secured Credit Agreement (Blue Owl Technology Income Corp.)

The Administrative Agent. (a) Each of the Lenders and the Issuing Banks hereby irrevocably appoints ~~the entity named~~ JPMorgan Chase Bank, N.A. as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors to serve as administrative~~ agent and ~~collateral agent under the Loan Documents and~~ authorizes ~~the Administrative Agent~~ JPMorgan Chase Bank, N.A. to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of hereof and the other 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants to~~ irrevocably appoints 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 such Issuing Bank’s behalf. It is understood~~ as its collateral agent and ~~agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to~~ authorizes the Administrative Agent ~~is not intended~~ to ~~connote any fiduciary duty or~~ take such actions on its behalf and to exercise such powers as are delegated to the collateral agent by the terms hereof and the other ~~implied (or express) obligations arising under agency doctrine~~ Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the collateral agent, the Lenders and the Issuing Bank, and no Borrower shall have rights as a third party beneficiary of any ~~applicable law. Instead,~~ of such ~~term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties.~~ provisions. (b) 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~~ the term “Lender” or “Lenders” shall, 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, ~~own securities of,~~ act as ~~the~~ a financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the ~~Borrower~~ Borrowers or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks.~~ Lenders. (c) [Reserved] (d) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~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 ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary,~~ expressly provided for herein or as by the ~~Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the~~ other Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law,~~ Laws; and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ U.S. Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided ~~in the Loan Documents~~herein) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct ~~(such absence to be presumed unless otherwise~~ as determined by a court of competent jurisdiction by in a final ~~and nonappealable~~ non-appealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice describing such Default thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower~~Borrowers, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document~~ therein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. . (e) The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the ~~issuance, extension, renewal or increase~~ issuance 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 ~~such~~ an Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or ~~such~~ an 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~~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. . (f) The Administrative Agent may perform any of 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 reasonably appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ of its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (g) The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may ~~resign~~ at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall~~ give notice of its ~~intent to resign~~ resignation to the Lenders, the Issuing Banks and the ~~Borrower~~Borrowers. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrowers and (unless an Event of Default under clause (a), (b), (h) or (i) of Article VII shall have occurred and be continuing) with the consent of the ~~Borrower~~ Borrowers (which consent of the Borrowers shall not be unreasonably withheld or delayed), 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 ~~intent to resign~~resignation, then the retiring Administrative Agent ~~may,~~ may on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon~~ Agent meeting the ~~acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all~~ qualifications set forth above; provided that if the ~~rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring~~ Administrative Agent shall ~~be discharged from its duties and obligations hereunder and under~~ notify the ~~other Loan Documents. The fees payable by Holdings~~ Borrowers and the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by Holdings, the Borrower and such successor. Notwithstanding the foregoing, in the event Lenders that no ~~successor Administrative Agent shall have been so appointed and shall have~~ qualifying Person has accepted such ~~appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign~~appointment, ~~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~~ then such resignation ~~stated~~ shall nonetheless become effective in accordance with such ~~notice,~~ notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan ~~Documents; provided that, solely for purposes~~ Documents (except that in the case of ~~maintaining~~ any collateral security ~~interest granted to~~ held by the Administrative Agent on behalf of the Lenders or the Issuing Banks under any ~~Security Document for the benefit~~ of the ~~Secured Parties~~Loan Documents, 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~~ collateral security until such time as a successor Administrative Agent is ~~appointed~~ appointed) and ~~accepts such appointment in accordance with this paragraph~~ (~~it being understood~~ 2) all payments, communications and ~~agreed that~~ determinations provided to be made by, to or through the ~~retiring~~ Administrative Agent shall ~~have no duty~~ instead be made by or ~~obligation~~ to ~~take any further action under any Security Document~~each Lender and the Issuing Banks directly, ~~including any action required to maintain the perfection of any~~ until such ~~security interest), and (b)~~ time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent~~; provided that (i) all payments required to be made hereunder or under any other Loan Document to~~ , and the ~~Administrative Agent for the account of any Person other than the~~ retiring Administrative Agent shall be ~~made directly~~ discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrowers to ~~such Person and (ii) all notices and other communications required or contemplated to be given or made to the~~ a successor Administrative Agent shall ~~also directly~~ be ~~given or made~~ the same as those payable to ~~each Lender~~ its predecessor unless otherwise agreed between the Borrowers and ~~each Issuing Bank~~such successor. ~~Following~~ After the ~~effectiveness of the~~ retiring Administrative Agent’s resignation ~~from its capacity as such~~hereunder and under the other Loan Documents, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 the retiring Administrative Agent was acting as Administrative Agent. Any resignation by JPMorgan Chase Bank, N.A. as Administrative Agent pursuant to this Section shall also constitute its resignation as Issuing Bank and ~~in respect~~ Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition of Defaulting Lender, the Required Lenders may, to the extent permitted by applicable Laws, by notice in writing to the Borrowers and such Person, remove such Person as Administrative Agent, and the Borrowers in consultation with the Lenders shall, unless an Event of Default shall have occurred and be continuing, in which case the Required Lenders in consultation with the Borrowers shall, 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, without the consent of the Borrowers (not to be unreasonably withheld), the Required Lenders shall not be permitted to select a successor that is not a U.S. financial institution described in Treasury Regulation Section 1.1441-1(b)(2)(ii) or a U.S. branch of a foreign bank described in Treasury Regulation Section 1.1441-1(b)(2)(iv)(A). If no such successor shall have been appointed by the Borrowers or the Required Lenders, as applicable, and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with notice on the Removal Effective Date. (h) Each Lender and ~~each~~ Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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,~~ . (i) To the extent required by ~~delivering its signature page to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or~~ any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toapplicable Laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the ~~Lenders on~~ provisions of Section 2.16, each Lender shall indemnify and hold harmless the ~~Effective Date~~ 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 ~~Funding Date~~Administrative Agent by the Internal Revenue Service or any other Governmental Authority as a result of any 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 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). ~~Except with respect~~ A certificate as to the ~~exercise~~ amount of ~~setoff rights of~~ such payment or liability delivered to 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secureconclusive

Appears in 1 contract

Sources: Credit Agreement (CONDUENT Inc)

The Administrative Agent. Each of the Lenders and the Issuing ~~Banks~~ Bank hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing ~~Banks~~ Bank hereby ~~grants~~ 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, and to take such actions on its behalf and to exercise such powers as are delegated to the ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. ~~Notwithstanding anything herein to~~ The rights of the ~~contrary,~~ Co-Collateral Agent hereunder are individual rights and the ~~Administrative~~ Person acting in the capacity as Co-Collateral Agent shall ~~not be liable for,~~ owe no duties or ~~be responsible for~~ obligations to any ~~loss, cost or expense suffered by the Borrower or any Lender~~ party hereto in its capacity as ~~a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield~~Co-Collateral Agent. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing ~~Banks~~ Bank and the Borrower. Upon ~~receipt of~~ any such ~~notice of~~ resignation, the Required Lenders shall have the right, with the consent of the Borrower ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with 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 ~~intent to resign~~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 ~~and~~ or the Issuing ~~Banks~~Bank 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 (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 successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Except as otherwise provided in Section 9.02(b) with respect to 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 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 ~~delivering its signature page~~ all or substantially all of such collateral security, alter the relative priorities of the obligations entitled to the benefits of the Liens created under the Security Documents with respect to all or substantially all of the Collateral, except that no such consent shall be required, and the Administrative Agent is hereby authorized, to (1) release any Lien covering property that is the subject of either a disposition of property permitted hereunder or a disposition to which the Required Lenders have consented, in each case, other than to another Obligor, (2) release from the Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) that is designated as a “Designated Subsidiary” or becomes an Excluded Subsidiary in accordance with this Agreement on or which is no longer required to be a “Subsidiary Guarantor,” so long as in the ~~Effective Date~~ case of this clause (2): (A) immediately after giving effect to any such release (and ~~funding its Loans on~~ any concurrent acquisitions of Portfolio Investments or payment of outstanding Indebtedness) the ~~Funding Date~~Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers a certificate of a Financial Officer to such effect to the Administrative Agent, (B) either (I) the amount of any excess availability under the Borrowing Base immediately prior to such release is not diminished as a result of such release and the Borrowing Base immediately after giving effect to such release or ~~delivering its signature page~~ designation is at least 100% of the Covered Debt Amount or (II) the Borrowing Base immediately after giving effect to ~~an Assignment~~ such release is at least 110% of the Covered Debt Amount and ~~Assumption~~ (C) no Default or Event of Default has occurred and is continuing and (3) spreading of Liens to any Other Pari Passu Secured Indebtedness or Notes Priority Secured Indebtedness or Hedging Obligations (as such term is defined in the Guarantee and Security Agreement) in accordance with the Guarantee and Security Agreement. 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 each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan ~~Document pursuant~~ 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 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 ~~which it shall become~~ such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, and the conditions for exemptive relief thereunder are and will continue to be satisfied in connection therewith, (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. In addition, unless sub-clause (i) in the immediately preceding paragraph is true with respect to a Lender ~~hereunder~~or such Lender has not provided another representation, ~~shall be deemed to have acknowledged receipt of~~warranty and covenant as provided in sub-clause (iv) in the immediately preceding paragraph, such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and ~~consented~~ (y) covenants, from the date such Person became a Lender party hereto to ~~and approved~~the date such Person ceases being a Lender party hereto, ~~this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~for the benefit of, the Administrative ~~Agent~~ Agent, and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the ~~Lenders on~~ benefit of the ~~Effective Date~~ Borrower or any other Loan Party, that: (i) none of the ~~Funding Date. Except~~ Administrative Agent, or any Joint Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of ~~setoff~~ any 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 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 under this Agreement, any Loan Document or any documents related hereto or thereto), (ii) the Person making the investment decision on behalf of such Lender with respect to the ~~Secured Parties in accordance with the terms thereof. In the event~~ entrance into, participation in, administration of ~~a foreclosure by the Administrative Agent on any~~ and performance of the ~~Collateral pursuant~~ Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21, as amended from time to time) and is a ~~public or private sale~~ bank, an insurance carrier, an investment adviser, a broker-dealer or other ~~disposition~~person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), (iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the ~~Administrative Agent or any Lender may be~~ Letters of Credit, the ~~purchaser or licensor~~ Commitments and this Agreement is capable of ~~any or all~~ evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the obligations), (iv) the Person making the investment decision on behalf of such ~~Collateral at any such sale~~ Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and (v) no fee or other ~~disposition, and~~ compensation is being paid directly to the Administrative Agent, ~~as agent for and representative~~ or any Joint Lead Arranger or any 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~~Affiliates for investment advice (as opposed to other services) 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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~~ Loans, the Letters of Credit, the Commitments or ~~release of any Collateral or of the obligations of any Loan Party under~~ this ~~Agreement or any other Loan Document except as expressly provided in the Collateral~~ Agreement. 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 SecureThe A

Appears in 1 contract

Sources: Amendment No. 1 and Waiver (FS Energy & Power Fund)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and authorizes the Administrative Agent to take such actions and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, own securities of, 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 Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the Borrower, any Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own bad faith, gross negligence or ~~wilful~~ willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by ~~Holdings,~~ the Borrower, a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Securewritten

Appears in 1 contract

Sources: Credit Agreement (Comtech Telecommunications Corp /De/)

The Administrative Agent. ~~Each~~ Citibank has been appointed Administrative Agent for the Lenders hereunder pursuant to Section 8.01Article 8 of the ~~Lenders~~ ABL Credit Agreement and, by their acceptance of the benefits hereof, the other Secured Parties. It is expressly understood and agreed by the ~~Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of~~ parties to this Security Agreement ~~and its successors to serve as administrative agent and collateral agent under the Loan Documents and authorizes~~ that any authority conferred upon the Administrative Agent hereunder is subject to ~~take such actions and to exercise such powers as are delegated~~ the terms of the delegation of authority made by the Lenders to the Administrative Agent ~~by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition,~~ pursuant to the ~~extent required under the laws of any jurisdiction other than the United States of America~~ABL Credit Agreement, ~~each of the Lenders~~ and ~~the Issuing Banks hereby grants to~~ that the Administrative Agent has agreed to act (and any ~~required powers of attorney~~ successor Administrative Agent shall act) as such hereunder only on the express conditions contained in such Section 8.01Article 8. Any successor Administrative Agent appointed pursuant to ~~execute any Security Document governed by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use~~ Section 8.01Article 8 of the ~~term “agent” (or any similar term) herein or in any~~ ABL Credit Agreement shall be entitled to all the rights, interests and benefits of the Administrative Agent hereunder. By accepting the benefits of this Security Agreement and each other Loan Document, each Secured Party expressly acknowledges and agrees that this Security Agreement and each other Loan Document ~~with reference to~~ may be enforced only by the ~~Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine~~ action of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. 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 that such ~~Person~~ Secured Party shall not have any right individually to seek to enforce or to enforce this Security Agreement or to realize upon the security to be granted hereby, it being understood and ~~its Affiliates~~ agreed that such rights and remedies may accept deposits from, lend money to, own securities of, 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 Subsidiary or other Affiliate thereof as if such Person were not be exercised by the Administrative Agent ~~hereunder~~ for the benefit of the Secured Parties upon the terms of this Security Agreement and ~~without any duty to account therefor to~~ the ~~Lenders or the Issuing Banks~~other Loan Documents. The Administrative Agent ~~shall not have~~ may rely on advice of counsel as to whether any ~~duties~~ or ~~obligations except those expressly set forth in the Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality~~ all UCC financing statements 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 power, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith Grantors need to be ~~necessary, under the circumstances~~ amended as provided in 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 this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrower, any Subsidiary or any other Affiliate a result of any of the ~~foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates~~ changes described 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~~ Section 5.01(i) of the ~~Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith~~ ABL Credit Agreement. If any Grantor fails to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given provide information to the Administrative Agent ~~by Holdings, the Borrower,~~ about such changes on a Lender or 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or any other Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in this Agreement or any other 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 contrarytimely basis, the Administrative Agent shall not be liable ~~for,~~ or be responsible to any Secured Party for any ~~loss~~failure to maintain a perfected security interest in such Grantor’s property constituting Collateral, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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, which the Administrative Agent ~~may presume that such condition is satisfactory~~ needed to have information relating to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditchanges. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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~~ inquire about such changes if 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 Grantor does not inform 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 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~~changes, 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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~~ acknowledging and agreeing that it would not be feasible 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 practical 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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~~ search for information on such changes if such information is not provided by ~~the Loan Documents as a Secure~~any Grantor.

Appears in 1 contract

Sources: Abl Credit Agreement (PQ Group Holdings Inc.)

The Administrative Agent. Each of the ~~Lenders~~ Lenders, the Swingline Lender and the Issuing Banks hereby irrevocably appoints ~~the entity named~~ ▇▇▇▇ (or any successor appointed pursuant hereto) as Administrative Agent ~~in the heading of this Agreement~~ hereunder and ~~its successors to serve as administrative agent and collateral agent~~ under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. 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 such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Any 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 the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings, the Borrower~~ any Loan Party or any ~~Subsidiary~~ subsidiary of any Loan Party or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder~~ hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and ~~without~~ acknowledge that the Administrative Agent shall not be under any ~~duty~~ obligation to ~~account therefor~~ provide such information to ~~the Lenders or the Issuing Banks~~them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan ~~Documents,~~ Documents and its duties hereunder shall be administrative in nature. 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 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; 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 to exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents ~~that~~ and which the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the relevant circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law~~laws, 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 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, any Subsidiary~~ Lead Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the relevant circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise~~ willful misconduct, as determined by the final and non-appealable judgment of a court of competent ~~jurisdiction by a final and nonappealable 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 ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower, a Lender~~ Lead Borrower or ~~an Issuing Bank~~any Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) the performance or observance of any ~~of the covenants~~covenant, ~~agreements~~ agreement or other ~~terms~~ term or ~~conditions~~ condition set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default or Event of Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document or~~ document, (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 IV 4 or elsewhere in ~~this Agreement or~~ any ~~other~~ Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or ~~satisfaction~~ (vii) any property, book or record of any ~~condition that expressly refers to~~ Loan Party or any Affiliate thereof. If any Lender acquires knowledge of the ~~matters described therein being acceptable~~ existence of a Default or ~~satisfactory to~~ Event of Default, it shall promptly notify the Administrative Agent and the other Lenders thereof in writing. Each Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other Loan Document, accelerate the Obligations under any Loan 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. Notwithstanding the foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan 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 ~~herein~~ to the ~~contrary~~contrary contained herein or in any of the other Loan Documents, Holdings, the Borrowers, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Documents; it being understood and agreed that all powers, rights and remedies hereunder shall be exercised solely and exclusively 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 Loan Documents shall be exercised solely and exclusively 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), (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 Lender 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 Secured Banking Services Obligation in its respective capacity as such shall have any rights in connection with (i) the management or release of any Collateral or of the obligations of any Loan Party under this Agreement or (ii) any waiver, consent, modification or any amendment with respect to this Agreement or any other Loan Document. Each of the Lenders 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 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 Lenders: (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 and continuation 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 Lender or other Secured Party; it being understood that no Lender 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 be, credit bid by the Administrative Agent 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 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 credit bid the Secured Obligations or purchase the Collateral in the relevant Disposition. In the event that the Administrative Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot be estimated without unduly delaying the ability of the Administrative Agent to consummate any credit bid or purchase in accordance with the second preceding paragraph, then any contingent or unliquidated claims not so estimated shall be disregarded, shall not be ~~liable for~~credit bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral purchased by 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 ~~responsible for any loss, cost or expense suffered by~~ entitled to receive interests in the ~~Borrower~~ Collateral or any ~~Lender~~ 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 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 proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, each Secured Party agrees that the Administrative Agent (irrespective of whether the principal of any Revolving Loan or LC exposure 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 Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise: (i) to file and prove a ~~result of, any determination~~ claim for the whole amount of the principal and interest owing and unpaid in respect of the Revolving Loans or LC Exposure and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts to the extent due to the Lenders 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 claims and to distribute the same. Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and Issuing Bank to make such payments to the Administrative Agent and, in the event that the Administrative Agent consents to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amount due to the Administrative Agent under Sections 2.12 and 9.03. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the ~~component amounts thereof~~ rights of any Lender or any Issuing Bank or to authorize the Administrative Agent to vote in respect of the ~~Weighted Average Yield~~claim of any Lender or any Issuing Bank in any such proceeding. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be have been made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. In determining compliance with any condition hereunder to the making of a Revolving Loan, or the ~~issuance, extension, renewal or increase~~ issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a ~~Lender or an Issuing Bank~~Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successor. 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 from its capacity as such, the provisions of this Article 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Securem

Appears in 1 contract

Sources: Fifth Amendment Agreement (Ecovyst Inc.)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and~~ as its ~~successors to serve as 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 of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Required Lenders or the Borrower may at any time, to with the ~~extent required under the laws of any jurisdiction other than the United States of America, each~~ consent of the ~~Lenders~~ Borrower (provided that such consent shall not be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII shall have occurred and be continuing) or the ~~Issuing Banks hereby grants to~~ Required Lenders, as the case may be, replace the Administrative Agent (it being understood that any ~~required powers~~ such replacement Administrative Agent shall be a Person that serves as administrative agent for other credit facilities of ~~attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed~~ a comparable size), provided that the ~~use~~ Required Lenders or the Borrower may not replace the Administrative Agent unless, after giving effect to such replacement and each contemporaneous assignment the Required Lenders or the Borrower shall have arranged in connection with such replacement, (i) neither the Administrative Agent nor any of ~~the term “agent” (~~its Affiliates shall have outstanding any Letter of Credit, Loan, LC Disbursement, Commitment or other obligation of any ~~similar term) herein~~ kind under this Agreement or in any other Loan Document ~~with reference to~~ and (ii) each of the Administrative Agent ~~is not intended~~ and its Affiliates shall have received payment in full of all amounts owing to ~~connote any fiduciary duty~~ it under or in respect of this Agreement and each other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting partiesLoan Document. The ~~Person~~ bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and such ~~Person~~ bank and its Affiliates may accept deposits from, lend money ~~to, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks~~hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to this Agreement or any other Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or ~~any other Affiliate of~~ any of the ~~foregoing~~ Subsidiaries that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in ~~this Agreement or~~ any ~~other~~ Loan ~~Document or the occurrence of any Default~~Document, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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~~ no Arranger and no Lender identified as a Co-Syndication Agent or a Co-Documentation Agent shall ~~not be liable for~~have any separate rights, duties, responsibilities, obligations or ~~be responsible for any loss~~authority as Arranger, ~~cost~~ Co-Syndication Agent or ~~expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield~~Co-Documentation Agent. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing ~~(including any electronic message, Internet or intranet website posting or other distribution)~~ believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the 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 (which shall not be unreasonably withheld or delayed)~~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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be any commercial bank organized under the laws of the United States of America or any State thereof having a ~~bank with an office in New York, New York, or an Affiliate~~ combined capital and surplus and undivided profits of ~~any such bank~~not less than $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 and under the other Loan Documents~~hereunder. 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure.

Appears in 1 contract

Sources: Credit Agreement (Unisource Energy Corp)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement~~ as its agent hereunder and ~~its successors to serve as administrative agent and collateral agent~~ 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 ~~of the Loan Documents~~hereof or thereof, 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants~~ 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 ~~Administrative~~ Collateral Agent ~~any required powers of attorney to execute any Security Document governed~~ by the ~~laws of~~ terms hereof or thereof, together with such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood~~ actions and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used powers as ~~a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. Such Person and its Affiliates may (without having to account therefor to any other Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with any of the Obligors (or any Subsidiary or other Affiliate thereof) as if it were not the Administrative Agent hereunder, and such Person and its Affiliates may accept ~~deposits from, lend money to, own securities of, act as~~ fees and other consideration from any of the ~~financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary~~ Obligors or other Affiliate thereof ~~as if such Person were not the Administrative Agent hereunder and~~ for services in connection with this Agreement or otherwise without ~~any duty~~ having to account ~~therefor~~ for the same to the ~~Lenders or the Issuing Banks~~other Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in 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 this Agreement or any other Loan Document or applicable lawLenders, and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable 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,~~ expressly provided for herein or ~~as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided~~ in the other Loan Documents) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document or the occurrence of any Default~~therein, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement~~ herein or ~~any other Loan Document~~therein, other than to confirm receipt of items expressly required to be delivered to the Administrative ~~Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative~~ Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Creditliability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one (1) or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and ~~nonappealable~~ non-appealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such sub-agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the 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 ~~(which shall~~ not to be unreasonably withheld ~~or delayed~~(or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor, which is not a natural person, a Defaulting Lender or a Disqualified Lender. 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 ~~intent to resign~~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 ~~and~~ or the Issuing ~~Banks~~Banks 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 (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 successor ~~Administrative Agent, which shall be a bank with an office~~ agent as provided for above in ~~New York, New York, 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 ~~and under the other Loan Documents~~(if not already discharged therefrom as provided above in this paragraph). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. Any resignation by SMBC as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Bank and ~~in respect~~ a Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. Each Lender ~~and each Issuing Bank acknowledges~~ agrees that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~ Agreement and ~~each Issuing Bank also acknowledges~~ that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 analysis and decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant Documents to which it ~~shall become~~ is a ~~Lender hereunder, shall be deemed~~ party. Except as otherwise provided in Section 9.02(b) with respect to ~~have acknowledged receipt of, and consented to and approved,~~ this ~~Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to~~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 ~~Lenders on~~ Loan Documents, provided that, without the ~~Effective Date~~ prior consent of each Lender and each Issuing Bank, the Administrative Agent shall not (except as provided herein or in the ~~Funding Date. Except~~ 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 ~~exercise~~ Collateral (excluding (x) any increase in the Loans and Letters of ~~setoff rights~~ Credit hereunder pursuant to a Commitment Increase under Section 2.08(e), (y) any increase in any Other Secured Indebtedness or Shorter Term Secured Indebtedness permitted hereunder and (z) the spreading of such Liens to any ~~Lender~~ Designated Indebtedness or Hedging Agreement Obligations (as defined in the Guarantee and Security Agreement) as provided for in the Guarantee and Security Agreement), 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) (and so agrees with the Borrower), to direct the Collateral Agent under the Guarantee and Security Agreement, subject to any applicable requirements under Section 10.03 of the Guarantee and Security Agreement, to (1) release any Lien covering property that is the subject of either a disposition of property (including, without limitation, any property subject to a participation or repurchase transaction) not prohibited hereunder or a disposition to which the Required Lenders have consented,in accordance with Section ~~9.08 or~~ 9.02(c) hereof and (2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) in accordance with ~~respect~~ Section 9.02(c) and (3) spread Liens to ~~a Lender’s right~~ anydeliver such documents to ~~file a proof of claim~~ evidence such releases in ~~an insolvency proceeding~~accordance with Section 9.02(c) hereof, ~~no Secured Party shall have any right individually to realize upon any~~ in each case of the ~~Collateral~~ foregoing clauses (1) through (3), (A) if no Designated Indebtedness or Hedging Agreement Obligations (as such terms are defined inis outstanding as of such time, automatically and with no further action from any other party and (B) otherwise, subject to ~~enforce~~ any ~~Guarantee~~ applicable requirements under Section 10.03 of the ~~Obligations, it being understood~~ Guarantee 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~~ Security Agreement) 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, Guarantee 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Security Agreement. 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 Secure.

Appears in 1 contract

Sources: Senior Secured Revolving Credit Agreement (Blue Owl Credit Income Corp.)

The Administrative Agent. Each of the Lenders ~~and the Issuing Banks~~ hereby irrevocably appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. as the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and its successors to serve as 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 ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The Administrative Agent shall also act as the “collateral agent” under any Security Documents (and for purposes of this Article 8, references to the ~~extent required under the laws of any jurisdiction other than the United States of America~~“Administrative Agent” shall be deemed to be “Administrative Agent and Collateral Agent”), and each of the Lenders hereby irrevocably appoints and ~~the Issuing Banks hereby grants to~~ authorizes the Administrative Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any ~~required~~ and all Liens on Collateral granted by any of the Loan Parties and entering into the Security Documents as contemplated by Section 5.11 and 5.12, together with such powers ~~of attorney to execute~~ and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any ~~Security Document governed~~ co-agents, sub-agents and attorneys-in-fact appointed by the ~~laws~~ Administrative Agent hereunder for purposes of ~~such jurisdiction~~ holding or enforcing any Lien on ~~such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that~~ the ~~use of the term “agent”~~ Collateral (or any ~~similar term~~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 8 and Article 9 as if set forth in full herein or with respect thereto. Except, in ~~any other Loan Document with reference to~~ 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 is and the Lenders, and the Borrower shall not ~~intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine~~ have rights as a third party beneficiary of any ~~applicable law. Instead,~~ of such ~~term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties~~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~~Agent and the term “Lender” or “Lenders” shall, ~~and such~~ 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, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings,~~ the Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks~~Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in Section 9.02 or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any 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 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or (ii) in the absence of its own gross negligence or ~~wilful~~ willful misconduct (~~such absence to be presumed unless otherwise~~ as determined by a court of competent jurisdiction by in a final and ~~nonappealable judgment~~non-appealable decision). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement or any other Loan Document~~ herein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV 4 or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. 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~~Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender ~~or such Issuing Bank~~ unless the Administrative Agent shall have received notice to the contrary from such Lender ~~or such Issuing Bank~~ prior to the making of such ~~Loan or the issuance of such Letter of Credit~~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 of 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 of and all ~~their~~ of its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ provisions of this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation,~~ by notifying the ~~Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks~~ Lenders and the Borrower. Upon ~~receipt of~~ any such notice of resignation, the Required Lenders shall have the right, in consultation with the ~~consent~~ 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., ▇▇ ▇▇▇▇▇▇ Chase Bank, N.A., Bank of America, N.A., Deutsche Bank AG New York Branch or ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, 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 (~~which shall~~ such consent not to be 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 days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation (or such earlier date as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may, on behalf of the ~~Lenders and the Issuing Banks~~Lenders, appoint a successor Administrative ~~Agent~~Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, ~~which~~ such resignation shall ~~be a bank~~ become effective in accordance with ~~an office in New York, New York, or an Affiliate of any~~ such ~~bank~~notice on the Resignation Effective Date. 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 ~~and~~ or under the other Loan ~~Documents~~Documents (if not already discharged therefrom as provided above in this Article). 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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 and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect Anything herein to the ~~exercise~~ contrary notwithstanding, none 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~~ the Arrangers 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 duties 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 responsibilities under this Agreement or any of the other Loan ~~Document~~ Documents, except in its capacity, as ~~expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral~~applicable, ~~each Secured Party that is a party to any such Hedging Agreement shall be deemed to have appointed~~ as the Administrative Agent or a Lender hereunder. The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion to ~~serve as administrative agent and collateral agent~~ release any Guarantor from its obligations under ~~the Loan Documents and agreed~~ any Guaranty if such Person ceases to be ~~bound~~ a Subsidiary as a result of a transaction permitted hereunder or ceases to be a Material Subsidiary. Upon request by the ~~Loan Documents as a Secure~~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 1 contract

Sources: Revolving Credit Agreement (Twitter, Inc.)

The Administrative Agent. (a) Each of the Lenders and the Issuing Banks hereby irrevocably appoints ~~the entity named~~ JPMorgan Chase Bank, N.A. as ~~Administrative Agent in the heading of this Agreement and~~ its ~~successors to serve as administrative~~ agent and ~~collateral agent under the Loan Documents and~~ authorizes ~~the Administrative Agent~~ JPMorgan Chase Bank, N.A. to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of hereof and the other 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~~ Each of the Lenders and the Issuing Banks hereby ~~grants to~~ irrevocably appoints 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 such Issuing Bank’s behalf. It is understood~~ as its collateral agent and ~~agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to~~ authorizes the Administrative Agent ~~is not intended~~ to ~~connote any fiduciary duty or~~ take such actions on its behalf and to exercise such powers as are delegated to the collateral agent by the terms hereof and the other ~~implied (or express) obligations arising under agency doctrine~~ Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the collateral agent, the Lenders and the Issuing Bank, and no Borrower shall have rights as a third party beneficiary of any ~~applicable law. Instead,~~ of such ~~term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties.~~ provisions. (b) 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~~ the term “Lender” or “Lenders” shall, 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~~, own securities of~~, 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 Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders~~ Lenders. (c) Any assignor of a Loan or seller of a participation hereunder shall be entitled to rely conclusively on a representation of the ~~Issuing Banks~~assignee Lender or Participant in the relevant Assignment and Assumption or participation agreement, as applicable, that such assignee or purchaser is an Eligible Assignee. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified 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. (d) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~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 ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary,~~ expressly provided for herein or as by the ~~Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the~~ other Loan Documents); , provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law,~~ Laws; and (c) except as expressly set forth 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 ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided ~~in the Loan Documents~~herein) or in the absence of its own bad faith, gross negligence or ~~wilful~~ willful misconduct ~~(such absence to be presumed unless otherwise~~ as determined by a court of competent jurisdiction by in a final ~~and nonappealable~~ non-appealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice describing such Default thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the Borrower, a Lender or an the 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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document~~ therein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. . (e) The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the ~~issuance, extension, renewal or increase~~ issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an the Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or ~~such~~ the Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or ~~such~~ the 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. . (f) The Administrative Agent may perform any of 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 reasonably appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ of its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (g) The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may ~~resign~~ at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall~~ give notice of its ~~intent to resign~~ resignation to the Lenders, the Issuing ~~Banks~~ Bank and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower and (unless an Event of Default under clause (a), (b), (h) or (i) of Article VII shall have occurred and be continuing) with the consent of the Borrower (which consent of the Borrower shall not be unreasonably withheld or delayed), 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 thirty (30) days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation, then the retiring Administrative Agent ~~may,~~ may on behalf of the Lenders and the Issuing ~~Banks~~Bank, appoint a successor Administrative ~~Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon~~ Agent meeting the ~~acceptance of its appointment as~~ qualifications set forth above; provided that if the Administrative Agent ~~hereunder by a successor~~shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such ~~successor~~ resignation shall ~~succeed to~~ nonetheless become effective in accordance with such notice and ~~become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and~~ (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the Issuing Bank under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) 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 and the Issuing Bank directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). 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 ~~by Holdings,~~ between the Borrower and such successor. ~~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~~ After the retiring Administrative ~~Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its~~ Agent’s 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 from its capacity as such, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 the retiring Administrative Agent was acting as Administrative Agent. Any resignation by JPMorgan Chase Bank, N.A. as Administrative Agent pursuant to this Section shall also constitute its resignation as Issuing Bank and ~~in respect~~ Swingline Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swingline Lender, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition of Defaulting Lender, the Required Lenders may, to the extent permitted by applicable Laws, by notice in writing to the Borrower and such Person, remove such Person as Administrative Agent, and the Borrower in consultation with the Lenders shall, unless an Event of Default shall have occurred and be continuing, in which case the Required Lenders in consultation with the Borrower shall, 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, without the consent of the Borrower (not to be unreasonably withheld), the Required Lenders shall not be permitted to select a successor that is not a U.S. financial institution described in Treasury Regulation Section 1.1441-1(b)(2)(ii) or a U.S. branch of a foreign bank described in Treasury Regulation Section 1.1441-1(b)(2)(iv)(A). If no such successor shall have been appointed by the Borrower or the Required Lenders, as applicable, and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with notice on the Removal Effective Date. (h) Each Lender and ~~each~~ the Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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~~ the Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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,~~ . (i) To the extent required by ~~delivering its signature page to this Agreement on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or~~ any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toapplicable Laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the ~~Lenders on~~ provisions of Section 2.16, each Lender shall indemnify and hold harmless the ~~Effective Date~~ 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 ~~Funding Date~~Administrative Agent by the Internal Revenue Service or any other Governmental Authority as a result of any failure of the Administrative Agent to properly withhold Tax from amounts paid to or for the account of such Lender for any reason (including, 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). ~~Except with respect~~ A certificate as to the ~~exercise~~ amount of ~~setoff rights of~~ such payment or liability delivered to 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 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~~shall be conclusive absent manifest error. ~~In the event of a foreclosure by~~ Each Lender hereby authorizes 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 set off and apply any ~~of the Loan Document Obligations as a credit on account of the purchase price for~~ and all amounts at any ~~collateral payable by the Administrative Agent on behalf of the Secured Parties at~~ time owing to such sale or other disposition. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 Lender under this Agreement or any other Loan Document ~~except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party to~~ against any ~~such Hedging Agreement shall be deemed to have appointed~~ amount due the Administrative Agent ~~to serve as administrative agent~~ under this clause (i). The agreements in this clause (i) 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 Commitments and ~~collateral agent under~~ the ~~Loan Documents~~ repayment, satisfaction or discharge of all other Obligations. For the avoidance of doubt, a “Lender” shall, for purposes of this clause (i), include any Swingline Lender and ~~agreed to be bound by the Loan Documents as a Secure~~any Issuing Bank.

Appears in 1 contract

Sources: Credit Agreement (Cable One, Inc.)

The Administrative Agent. Each of the Lenders and the Issuing ~~Banks~~ Banks, on behalf of itself and its applicable Affiliates and in their respective capacities as such and as Secured Parties in respect of any Secured Hedging Obligations or Banking Services Obligations, as applicable, hereby irrevocably appoints ~~the entity named~~ UBS AG, Stamford Branch (as successor in interest to Credit Suisse) (or any successor appointed pursuant hereto) as Administrative Agent ~~in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents~~ and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents or any other documents with respect to the rights of the Secured Parties and the Collateral as contemplated by this Agreement and the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each~~ Each of the ~~Lenders~~ Secured Parties hereby irrevocably appoints and ~~the Issuing Banks hereby grants to~~ authorizes the Administrative Agent (as collateral agent) to act as the agent of (and to hold any ~~required powers of attorney to execute any Security Document governed~~ security interest created by the ~~laws~~ Loan Documents for and on behalf of or on trust for) such ~~jurisdiction~~ Secured Party for purposes of acquiring, holding and enforcing any and all Liens on ~~such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that~~ Collateral granted by the ~~use~~ Loan Parties to secure any of the ~~term “agent” (or~~ Obligations, together with such powers and discretion as are reasonably incidental thereto. Each Secured Party agrees that any ~~similar term) herein or in any other Loan Document with reference to~~ such actions by the Administrative Agent ~~is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law~~shall bind such Secured Party. ~~Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The~~ Any 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 the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings, the Borrower~~ any Loan Party or any ~~Subsidiary~~ subsidiary of any Loan Party or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder~~ hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and ~~without~~ acknowledge that the Administrative Agent shall not be under any ~~duty~~ obligation to ~~account therefor~~ provide such information to ~~the Lenders or the Issuing Banks~~them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is ~~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 to exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents ~~that~~ and which the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the relevant circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable ~~law,~~ Requirements of Law and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~Holdings, the Borrower, any Subsidiary~~ Parent or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the relevant circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful misconduct (such absence to be presumed unless otherwise~~ willful misconduct, as determined by the final judgment of a court of competent ~~jurisdiction by a final and nonappealable 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 ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings, the Borrower, a Lender~~ Parent or ~~an Issuing Bank~~any Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~this Agreement or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~with any Loan Document, (iii) the performance or observance of any ~~of the covenants~~covenant, ~~agreements~~ agreement or other ~~terms~~ term or ~~conditions~~ condition set forth in ~~this Agreement or~~ any ~~other~~ Loan Document or the occurrence of any Default or Event of Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document or~~ document, (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 IV 4 or elsewhere in ~~this Agreement or~~ any ~~other~~ Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or ~~satisfaction~~ (vii) any property, book or record of any ~~condition that expressly refers to~~ Loan Party or any Affiliate thereof; provided, further that, the ~~matters described therein being acceptable or satisfactory to~~ foregoing paragraph is solely for the benefit of the Administrative Agent and not any Lender. Each Lender agrees that, except with the written consent of the Administrative Agent~~. Notwithstanding anything herein to the contrary~~, ~~the Administrative Agent shall~~ it will not ~~be liable for, or be responsible for~~ take any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 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 such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 enforcement 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~~ Document, accelerate the Obligations under any Loan Document, or ~~through~~ exercise any ~~one~~ right that it might otherwise have under applicable law or ~~more sub-agents appointed by the Administrative Agent. The Administrative Agent and~~ otherwise to credit bid at any ~~such sub-agent may perform~~ foreclosure sale, UCC sale, any of and all their duties and exercise their rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties sale under Section 363 of the ~~Administrative Agent and any such sub-agent and shall apply to their respective activities in connection with the syndication~~ Bankruptcy Code or other similar Dispositions of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time 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 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 (which shall not be 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 days after the retiring Administrative Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in 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 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 by Holdings, the Borrower and such successorCollateral. Notwithstanding the foregoing, ~~in the event no successor Administrative Agent shall have been so appointed and shall have accepted~~ however, except as otherwise expressly limited herein, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable that would, absent such ~~appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign~~action, ~~the retiring Administrative Agent may give notice~~ bar enforcement of the ~~effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of~~ Obligations held by 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~~ filing 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 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 and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative 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 each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative 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 on the Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other 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 Funding Date. Except with respect to the 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~~a case under the Bankruptcy Code. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce ~~any Guarantee of~~ the ~~Obligations,~~ Loan Guaranty; it being understood and agreed that all powers, rights and remedies ~~under the Loan Documents~~ hereunder may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms ~~thereof. In~~ hereof and all powers, rights and remedies under the other Loan 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 ~~other disposition,~~ in the ~~Administrative Agent or any Lender may be the purchaser or licensor~~ event of any ~~or all~~ other Disposition (including pursuant to Section 363 of ~~such Collateral at any such sale or other disposition~~the Bankruptcy Code), ~~and~~ (A) 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)~~ 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 ~~public~~ sale, to use and apply all or any portion of the ~~Loan Document~~ Obligations as a credit on account of the purchase price for any ~~collateral~~ Collateral payable by the Administrative Agent ~~on behalf of the Secured Parties~~ at such ~~sale~~ Disposition and (B) the Administrative Agent or ~~other disposition~~any Lender may be the purchaser or licensee of all or any portion of such Collateral at any such Disposition. ~~In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging Obligations will create (or be deemed to create) in favor~~ No holder of any Secured ~~Party that is a party thereto~~ Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement. Each of the Lenders 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 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 Lenders: (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 (or other applicable Debtor Relief Law), 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 (or other applicable Debtor Relief Law), 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 (or other applicable Debtor Relief Law), 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 Lender or other Secured Party; it being understood that no Lender shall be required to fund any new amount in connection with any purchase of all or any portion of the Collateral by the Administrative Agent pursuant to the foregoing clauses (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 clauses (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 be, credit bid by the Administrative Agent on a ratable basis. For the avoidance of doubt, nothing in this Article 8 shall limit any rights of Parent or its Subsidiaries under Section 363(k) of the Bankruptcy Code (or the corresponding provisions of any other applicable Debtor Relief Law). With respect to each contingent or unliquidated claim that is a Secured Obligation, the Administrative Agent is hereby authorized by the Secured Parties, but is not required, to estimate the amount thereof for purposes of any 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 credit bid the Secured Obligations or purchase the Collateral in the relevant Disposition. In the event that the Administrative Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot be estimated without unduly delaying the ability of the Administrative Agent to consummate any credit bid or purchase in accordance with the second preceding paragraph, then any contingent or unliquidated claims not so estimated shall be disregarded, shall not be credit bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral purchased by means of such credit bid. Each Secured Party whose Secured Obligations are credit bid under clauses (b), (c) or (d) of the third preceding paragraph shall be entitled to receive interests in the Collateral or any other ~~Loan Document except as expressly provided~~ asset acquired in connection with such credit bid (or in the ~~Collateral Agreement. By accepting the benefits~~ Capital Stock of the ~~Collateral~~acquisition vehicle or vehicles that are used to consummate such acquisition) on a ratable basis in accordance with the 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 proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, each Secured Party agrees that ~~is a party to any such Hedging Agreement shall be deemed to have appointed~~ the Administrative Agent (irrespective of whether the principal of any Loan or LC Exposure 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 Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise: (i) to ~~serve~~ file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans or LC Exposure and all other Obligations that are owing and unpaid and to file such other documents as ~~administrative agent~~ may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and ~~collateral agent~~ the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and all other amounts to the extent due to the Lenders 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 claims and to distribute the ~~Loan Documents~~ same. Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and ~~agreed~~ each Issuing Bank to ~~be bound by~~ make such payments to the ~~Loan Documents as a Secure~~Administrative Agent and, in the event that the Administrative Agent consents to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amount due to the Administrative Agent under Sections 2.12 and 9.03.

Appears in 1 contract

Sources: Credit Agreement (Reynolds Consumer Products Inc.)

The Administrative Agent. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and~~ as its ~~successors to serve as 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 ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The provisions of this Article are solely for the benefit of the Administrative Agent, ~~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~~ Banks, and the ~~Administrative Agent~~ Loan Parties shall not have rights as a third-party beneficiary of any ~~required powers of attorney to execute any Security Document governed by the laws~~ of such ~~jurisdiction on such Lender’s or such Issuing Bank’s behalf~~provisions, except as set forth in the sixth, eighth and ninth paragraphs below. It is understood and agreed that the use of the term “agent” ~~(or any similar term)~~ herein or in any other Loan ~~Document~~ Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary ~~duty~~ or other implied (or express) obligations arising under agency doctrine of any applicable law. ~~Instead,~~ Instead such term is used as a matter of market ~~custom~~ custom, and is intended to create or reflect only an administrative relationship between contracting parties. The ~~Person~~ bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender ~~or an Issuing Bank~~ as any other Lender ~~or Issuing Bank~~ and may exercise the same as though it were not the Administrative ~~Agent~~Agent and the term “Lender” or “Lenders” shall, ~~and such~~ unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity ~~for~~ for, and generally engage in any kind of business with ~~Holdings~~the Company, the Borrower or any ~~Subsidiary~~ of their respective Subsidiaries or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks~~Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein, and its duties hereunder shall be administrative in nature. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, and (c) except as expressly set forth ~~in the Loan Documents~~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 Company, the ~~Borrower, any Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ their respective Subsidiaries that is communicated to or obtained by the ~~Person~~ 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, or as the Administrative Agent shall believe in good faith ~~to be~~ is necessary, under the circumstances as provided in ~~the Loan Documents~~Section 9.02) or in the absence of its own gross negligence or ~~wilful~~ willful misconduct ~~(such absence to be presumed unless otherwise~~ as determined by a court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document~~Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement or any other Loan Document~~ herein or the occurrence of any ~~Default~~default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this Agreement or any other ~~Loan Document or any other~~ agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper 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 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 (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 may act upon any such statement prior to receipt of written confirmation thereofPerson. 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 the Issuing ~~Bank~~Bank issuing such Letter of Credit, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. 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 ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or ~~wilful~~ willful misconduct in the selection of such ~~sub-agents~~sub‑agents. ~~Subject to the terms of this paragraph, the~~ The Administrative Agent (a) may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing Banks and the Borrower, subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, or (b) may be removed as Administrative Agent by the Required Lenders (excluding the Lender then acting as Administrative Agent) if the Administrative Agent (i) is found by a court of competent jurisdiction in a final, non-appealable judgment to have committed gross negligence, bad faith or willful misconduct in the course of performing its duties hereunder or (ii) has become a Defaulting Lender. Upon ~~receipt of~~ any such ~~notice of resignation~~resignation or removal, the Required Lenders shall have the right, with the consent of the Borrower (~~which shall not be unreasonably withheld or delayed~~unless 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 thirty (30) days after the retiring Administrative Agent gives notice of its ~~intent to resign~~resignation or upon the removal, ~~then~~ then, in the case of resignation by the Administrative Agent, the retiring Administrative Agent may, or in the case of removal of the Administrative Agent, the Required Lenders may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent,~~ Agent which shall be a bank with an office in 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 and under the other Loan Documents~~hereunder. 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 ~~by Holdings,~~ between the Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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 and in respect of the matters referred to in the proviso under clause (a) above~~Agent. Each Lender acknowledges and ~~each Issuing Bank acknowledges~~ agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not 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, the Arrangers~~ Agent 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. Each Lender ~~and each Issuing Bank also acknowledges that it will~~shall, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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~~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. ~~Each Lender, by delivering its signature page~~ Notwithstanding anything to ~~this Agreement on~~ the ~~Effective Date and funding its Loans on the Funding Date,~~ contrary contained herein or ~~delivering its signature page to an Assignment and Assumption or~~ in any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toDocument, the Administrative Agent is hereby irrevocably authorized by each Lender (without requirement of notice to or ~~the Lenders on the Effective Date or the Funding Date. Except with respect to the exercise of setoff rights~~ consent of any Lender except as expressly required by Section 9.02) to take any action requested by the Borrower having the effect of releasing any guarantee or collateral obligations (i) in connection with any transaction not prohibited by any Loan Document or that has been consented to in accordance with Section ~~9.08 or~~ 9.02, (ii) solely with respect to ~~a Lender’s right to file a proof of claim in an insolvency proceeding~~any Pledged Collateral obligations, ~~no Secured Party shall have any right individually to realize~~ upon ~~any~~ the occurrence of the ~~Collateral~~ Asset Growth Achievement in accordance with Section 5.10(c), (iii) in connection with any Guarantor ceasing to be a Material Subsidiary or ~~to enforce any Guarantee~~ otherwise becoming an Excluded Subsidiary as a result of ~~the Obligations, it being understood and agreed that all powers, rights and remedies~~ a transaction permitted under the Loan Documents ~~may~~ or (iv) under the circumstances described in the immediately succeeding paragraph below. Upon the Payment in Full, the Guarantors and Pledgors shall be ~~exercised solely~~ automatically released from their obligations under the Loan Documents (other than those expressly stated to survive such termination), all without delivery of any instrument or performance of any act by any Person. In the case of any disposition of any Pledged Collateral in a transaction permitted pursuant to Section 6.03(c), the Liens created by any of the Loan Documents on such property shall be automatically released without need for further action by any Person upon the consummation of such disposition. Upon request of the Borrower, the Administrative Agent ~~on behalf~~ shall, at the Borrower’s expense, take all such action reasonably requested by the Borrower to evidence the release of such Pledged Collateral from the ~~Secured Parties~~ assignment and security interest granted under the Loan Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. 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 Secure~~this Section.

Appears in 1 contract

Sources: Revolving Credit and Term Loan Agreement (Four Corners Property Trust, Inc.)

The Administrative Agent. ~~Each~~ In order to expedite the transactions contemplated by this Agreement, the Person named in the heading of this Agreement is hereby appointed to act as Administrative Agent on behalf of the Lenders and the Issuing ~~Banks~~ Bank. Each of the Lenders, each assignee of any Lender and the Issuing Bank hereby irrevocably ~~appoints the entity named as Administrative Agent in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents and~~ authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee or the Issuing Bank and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~The provisions of this Article are solely for the benefit of the Administrative Agent, to the ~~extent required under~~ Lenders and the ~~laws~~ Issuing Bank, and no Borrower shall have rights as a third party beneficiary of any ~~jurisdiction other than~~ of such provisions. The Administrative Agent is hereby expressly authorized by the ~~United States of America~~Lenders and the Issuing Bank, ~~each~~ without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the Issuing ~~Banks hereby grants~~ Bank 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 or the Issuing Bank its proper share of each payment so received; (b) to give notice on behalf of each of the Lenders to the Company of any Event of Default specified in this Agreement of which the Administrative Agent ~~any required powers~~ has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of ~~attorney to execute any Security Document governed~~ all notices, financial statements and other materials delivered by the ~~laws of such jurisdiction on such Lender’s~~ Company or ~~such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in~~ any other Loan ~~Document with reference~~ Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, the Administrative Agent is ~~not intended~~ hereby expressly authorized to ~~connote~~ release any ~~fiduciary duty~~ Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person other ~~implied (~~than the Company or ~~express) obligations arising under agency doctrine~~ an Affiliate of ~~any applicable law~~the Company in a transaction permitted by Section 6.04. ~~Instead~~With respect to the Loans made by it hereunder, ~~such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties. The Person serving as~~ the Administrative Agent ~~hereunder~~ in its individual capacity and not as Administrative Agent 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~~ the term “Lender” or “Lenders” 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 the Administrative Agent and its Affiliates may accept deposits from, lend money to~~, own securities of~~, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~Holdings,~~ the ~~Borrower~~ Company or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent ~~hereunder~~ and without any duty to account therefor to the ~~Lenders or the Issuing Banks~~Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 ~~power~~powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise ~~as directed~~ upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided in ~~the Loan Documents~~Section 11.02); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to ~~Holdings,~~ the ~~Borrower, any Subsidiary~~ Company or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Subsidiaries that is communicated to or obtained by the ~~Person~~ institution 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, or as the Administrative Agent shall believe in good faith to shall be necessary, under the circumstances as provided in ~~the Loan Documents~~Section 11.02) or in the absence of its own gross negligence or wilful ~~misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment)~~misconduct. The Administrative Agent shall not be deemed ~~not~~ to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ a Borrower (in which case the ~~Borrower, a Lender or an Issuing Bank~~Administrative Agent shall give written notice to each other 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 or~~ any ~~other~~ Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement~~ herein or ~~any other Loan Document~~ therein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of ~~this Agreement or~~ any ~~other~~ Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in ~~this Agreement or~~ any ~~other~~ 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed or~~ signed, sent or otherwise authenticated by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the ~~issuance, extension, renewal or increase~~ issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an the Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or ~~such~~ the Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or ~~such~~ the 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~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of and all its duties and exercise its rights and powers ~~hereunder or under any other Loan Document~~ by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the terms of this paragraph, the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to~~ by notifying the Lenders, the Issuing ~~Banks~~ Bank 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 (which shall not be unreasonably withheld or delayed)~~Company, 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 ~~intent to resign~~resignation, then the retiring Administrative Agent ~~may,~~ may on behalf of the Lenders and the Issuing ~~Banks~~Bank, appoint a successor Administrative ~~Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon~~ Agent meeting the ~~acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all~~ qualifications set forth above; provided that if the ~~rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring~~ Administrative Agent shall ~~be discharged from its duties and obligations hereunder and under~~ notify the ~~other Loan Documents. The fees payable by Holdings~~ Company and the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed by Holdings, the Borrower and such successor. Notwithstanding the foregoing, in the event Lenders that no ~~successor Administrative Agent shall have been so appointed and shall have~~ qualifying Person has accepted such ~~appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign~~appointment, ~~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~~ then such resignation ~~stated~~ shall nonetheless become effective in accordance with such ~~notice,~~ notice and (a1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan ~~Documents; provided that, solely~~ Documents and (2) except for ~~purposes of maintaining~~ any ~~security interest granted~~ indemnity payments or other amounts owed to ~~the Administrative Agent under any Security Document for the benefit of the Secured Parties,~~ the retiring Administrative Agent ~~shall continue~~ pursuant to any of the Loan Documents, all payments, communications and determinations provided to be ~~vested with such security interest as collateral agent for the benefit of the Secured Parties and~~made by, ~~in the case of any Collateral in the possession of~~ to or through the Administrative ~~Agent~~Agent shall instead be made by or to each Lender and the Issuing Bank directly, ~~shall continue to hold such Collateral, in each case~~ until such time as the Required Lenders appoint a successor Administrative Agent ~~is appointed and accepts such~~ as provided for above in this Section. Upon the acceptance of a successor’s appointment ~~in accordance with this paragraph (it being understood and agreed that the retiring~~ as Administrative Agent ~~shall have no duty or obligation to take any further action under any Security Document~~hereunder, ~~including any action required to maintain the perfection of any~~ such ~~security interest), and (b) the Required Lenders~~ successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring ~~Administrative Agent; provided that~~ (ior retired) ~~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 receipt of any indemnity payments or other amounts owed to the retiring Administrative Agent pursuant to any of the Loan Documents), and the retiring Administrative Agent shall be ~~made directly~~ discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Company to ~~such Person and (ii) all notices and other communications required or contemplated to be given or made to the~~ a successor Administrative Agent shall ~~also directly~~ be ~~given or made~~ the same as those payable to ~~each Lender~~ its predecessor unless otherwise agreed between the Company and ~~each Issuing Bank~~such successor. ~~Following~~ After the ~~effectiveness of the~~ retiring Administrative Agent’s resignation ~~from its capacity as such~~hereunder and under the other Loan Documents, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 11.03 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. Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as Issuing Bank and ~~in respect~~ Swing Line Lender. Upon the acceptance of ~~the matters referred to in the proviso under clause~~ a successor’s appointment as Administrative Agent hereunder, (a) ~~above~~such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank and Swing Line Lender, (b) the retiring Issuing Bank and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit. Each Lender ~~and each Issuing Bank~~ acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 each Issuing Bank~~ also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent 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 hereby acknowledges that no Co-Syndication Agent or Co-Documentation Agent has any rights, duties or liability hereunder other than in its capacity as a Lender~~, by delivering its signature page to this Agreement on~~ . In case of the ~~Effective Date and funding its Loans on the Funding Date, or delivering its signature page to an Assignment and Assumption~~ pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement and each other Loan Document and each other document required to be delivered to, or be approved by or satisfactory toParty, the Administrative Agent or (irrespective of whether the ~~Lenders on the Effective Date or the Funding Date. Except with respect to the exercise of setoff rights~~ principal of any ~~Lender~~ Loan or payments in ~~accordance with Section 9.08~~ respect of Letters of Credit shall then be due and payable as herein expressed or ~~with respect to a Lender’s right to file a proof~~ by declaration or otherwise and irrespective of claim in an insolvency proceeding, 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 whether the Administrative Agent shall have made any demand on ~~behalf~~ any Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise to file and prove a claim for the whole amount of the ~~Secured Parties~~ principal and interest owing and unpaid in ~~accordance with~~ respect of the ~~terms thereof. In~~ Loans, payments in respect of Letters of Credit and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the ~~event~~ claims of ~~a foreclosure by~~ the Lenders, the Issuing Bank and the Administrative Agent allowed in such judicial proceeding and to collect and receive any monies or other property payable or deliverable on any of such claims and to distribute the ~~Collateral pursuant to a public or private sale~~ same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other ~~disposition,~~ similar official in any such judicial proceeding is hereby authorized by each Lender and the Issuing Bank to make such payments to the Administrative Agent ~~or any Lender may be~~ and, in 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 event that the Administrative Agent ~~on behalf~~ shall consent to the making of such payments directly to the ~~Secured Parties at such sale or other disposition. In furtherance of~~ Lenders and the ~~foregoing and not in limitation thereof~~Issuing Bank, ~~no Hedging Agreement the obligations under which constitute Secured Hedging 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 this Agreement or any other Loan Document except as expressly provided in the Collateral Agreement. By accepting the benefits of the Collateral, each Secured Party that is a party pay to ~~any such Hedging Agreement shall be deemed to have appointed~~ the Administrative Agent ~~to serve as administrative agent~~ any amount due for the reasonable compensation, expenses, disbursements and ~~collateral agent~~ advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under ~~the Loan Documents~~ Sections 2.12 and ~~agreed to be bound by the Loan Documents as a Secure~~11.03.

Appears in 1 contract

Sources: Credit Agreement (Edwards Lifesciences Corp)

The Administrative Agent. Each of the Lenders (in its capacities as a Lender, a potential Hedge Bank and a potential Bilateral LC Provider), the Swingline Lender and each of the Issuing Banks hereby irrevocably appoints the ~~entity named as~~ Administrative Agent ~~in the heading of this Agreement and~~ as its ~~successors to serve as 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 of hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~In addition~~Except, to in each case, as set forth in the ~~extent required under~~ sixth paragraph of this Article, the ~~laws~~ provisions of ~~any jurisdiction other than~~ this Article are solely for the ~~United States~~ benefit of ~~America, each of the Lenders and the Issuing Banks hereby grants to~~ the Administrative Agent and the Lenders, and no Borrower shall have rights as a third party beneficiary of any ~~required powers of attorney to execute any Security Document governed by the laws~~ of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting partiesprovisions. 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~~Agent and the term “Lender” or “Lenders” shall, ~~and such~~ 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, own securities of, act as the financial advisor or in any other advisory capacity for~~ to and generally engage in any kind of business with ~~Holdings, the~~ any Borrower or any Subsidiary or other Affiliate thereof as if ~~such Person~~ it were not the Administrative Agent hereunder and without any duty to account therefor to the ~~Lenders or the Issuing Banks~~Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents~~, and its duties hereunder shall be administrative in nature~~. 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 to exercise any discretionary ~~power~~powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed ~~in writing~~ by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in Section 9.2 or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its ~~opinion~~opinion or the opinion of its counsel, ~~could~~ may expose the Administrative Agent to liability or be that is contrary to ~~this Agreement or~~ any ~~other~~ Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any 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 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 ~~Holdings, the Borrower,~~ any ~~Subsidiary~~ Borrower or any ~~other Affiliate~~ of ~~any of the foregoing~~ its Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable 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, or as the Administrative Agent shall believe in good faith to be necessary,~~ necessary under the circumstances as provided in ~~the Loan Documents~~Section 9.2) or (ii) in the absence of its own gross ~~negligence~~ negligence, bad faith or ~~wilful~~ willful misconduct (~~such absence to be presumed unless otherwise~~ as determined by a court of competent jurisdiction by in a final and ~~nonappealable judgment~~non-appealable decision). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof ~~(stating that it is a “notice of default”)~~ is given to the Administrative Agent by ~~Holdings,~~ the ~~Borrower,~~ Lead Borrower or a ~~Lender or an Issuing Bank~~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 or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or ~~thereunder or~~ in connection ~~herewith or therewith~~herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in this Agreement or any other Loan Document~~ herein or the occurrence of any Default, (iv) the ~~sufficiency,~~ validity, enforceability, effectiveness or genuineness of this ~~Agreement or~~ Agreement, any other Loan Document or any other agreement, instrument or ~~document~~ document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in this Agreement or any other Loan Document~~herein, 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 be liable for, or be responsible for any loss, cost or expense suffered by the Borrower or any Lender as a result of, any determination of the Revolving Exposure or the component amounts thereof or of the Weighted Average Yield. The Administrative Agent shall be entitled to ~~rely~~rely upon, and shall not incur any liability for ~~relying~~relying upon, ~~upon~~ any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent ~~or otherwise authenticated~~ by the proper ~~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)~~Person. The Administrative Agent also ~~shall be entitled to rely, and shall not incur any liability for relying,~~ may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~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)~~Person, and ~~may act upon~~ shall not incur any ~~such statement prior to receipt of written confirmation thereof~~liability for relying thereon. 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~~Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender ~~or such Issuing Bank~~ unless the Administrative Agent shall have received notice to the contrary from such Lender ~~or such Issuing Bank~~ prior to the making of such ~~Loan or the issuance of such Letter of Credit~~Loan. The Administrative Agent may consult with legal counsel (who may be counsel for ~~the~~ any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any of 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 of and all ~~their~~ its duties and exercise ~~their~~ its rights and powers ~~by or~~ through their respective Related Parties. The exculpatory provisions of ~~this Article~~ the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-~~agent~~ 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. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or wilful misconduct in the selection of such sub-agents. Subject to the ~~terms~~ appointment and acceptance of a successor Administrative Agent as provided in this paragraph, (a) the Administrative Agent may resign at any time ~~from its capacity as such. In connection with such resignation, the Administrative Agent shall give~~ by giving 15 Business Days’ prior written notice ~~of its intent to resign~~ to the Lenders, the Swingline Lender, the Issuing Banks and the ~~Borrower~~Lead Borrower and (b) the Lead Borrower may remove the Administrative Agent at any time on and after the date that the Administrative Agent or any of its direct or indirect parent companies satisfies any provision of clause (d) of the definition of “Defaulting Lender”, by giving written notice to the Administrative Agent, each Lender, the Swingline Lender and each Issuing Bank. Any such resignation by an Administrative Agentor removal hereunder shall also constitute itsthe Administrative Agent’s resignation or removal as an Issuing Bank and Swingline Lender, in which case the resigning or removed Administrative Agent shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder, and shall maintain all of its rights as an Issuing Bank or Swingline Lender, as the case may be (as a Defaulting Lender, in the case of its removal pursuant to clause (b) above), with respect to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such resignation. Upon ~~receipt~~ any such removal, the Lead Borrower shall have the right to appoint a successor Administrative Agent, which shall be a commercial bank having a combined capital and surplus of at least $200,000,000 with an office in New York, New York, or an Affiliate of any such ~~notice of~~ commercial bank with an office in New York, New York. Upon any such resignation, the Required Lenders shall have the right, in consultation with the ~~consent of the Borrower (~~Lead Borrower, to appoint a successor, which shall be a commercial bank having a combined capital and surplus of at least $200,000,000 with an office in New York, New York, or an Affiliate of any such commercial bank with an office in New York, New York; provided that, in the event that such successor or Administrative Agent appointed by the Required Lenders is not ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. or any of its Affiliates, and so long as no Event of Default shall have occurred and be continuing, the Lead Borrower shall have the right to approve such successor Administrative Agent (such approval not to be unreasonably withheld or delayed). If, ~~to appoint a successor. If~~ following the resignation of the Administrative Agent, 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 ~~intent to resign~~resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent~~Agent meeting the qualifications set forth above; provided that, ~~which~~ in the event that such successor or Administrative Agent appointed by the resigning Administrative Agent is not ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. or any of its Affiliates, and so long as no Event of Default shall have occurred and be ~~a bank with an office in New York~~continuing, ~~New York,~~ the Lead Borrower shall have the right to approve such successor Administrative Agent (such approval not to be unreasonably withheld or ~~an Affiliate of any such bank~~delayed). Upon the acceptance of its appointment as asremoval of the 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)by the Lead Borrower as provided above, or upon the resignation effective date established in the Administrative Agent’s resignation notice and regardless of whether a successor Administrative Agent, and the has been appointed and accepted such appointment, (i) the removed or retiring Administrative Agent’s resignation or removal shall nevertheless become effective and the removed or retiring Administrative Agent shall be discharged from its duties and obligations hereunder ~~and~~ or under the other Loan Documents (if not already discharged therefrom as provided above in this Article) and (ii) except for amount owed or otherwise payable from time to time to the retiring Administrative Agent under the Loan Documents, 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 and each Issuing Bank directly, until such time as a successor Administrative Agent is appointed in accordance with the terms of this paragraph. The fees payable by ~~Holdings and~~ ParentHoldings or the ~~Borrower~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~by Holdings,~~ between the Lead Borrower and such successor. 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 After the Administrative Agent’s resignation ~~from its capacity as such~~hereunder, the provisions of this Article and Section ~~9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,~~ 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. 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 removed, retiring or retired Administrative Agent. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan, any reimbursement obligation in respect of any LC Disbursement or any Cash Collateral Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on any Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (x) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the ~~matters referred~~ Loans, any reimbursement obligation in respect of any LC Disbursement, any Cash Collateral Obligation and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the ~~proviso~~ claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Issuing Banks and the Administrative Agent under ~~clause~~ Section 2.11 and 9.3) allowed in such judicial proceeding; and (ay) ~~above. Each~~ to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each Issuing Bank to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Bank, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Section 2.11 and 9.3. Each Lender acknowledges that it has, independently and without reliance upon the Administrative ~~Agent, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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, the Arrangers~~ Agent or any other Lender or ~~Issuing Bank, or~~ any of ~~the~~ their 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~~Anything herein to the contrary notwithstanding, ~~by delivering its signature page to this Agreement on~~ the ~~Effective Date and funding its Loans on~~ Arrangers, the Funding Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, this Agreement Syndication Agent and each ~~other Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative~~ Documentation Agent or the Lenders on the Effective Date or the Funding Date. Except with respect to the 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 not 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 duties 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. In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement the obligations under which constitute Secured Hedging 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 responsibilities under this Agreement or any of the other Loan ~~Document~~ Documents, except in their respective capacities, as ~~expressly provided in~~ applicable, as the ~~Collateral Agreement~~Administrative Agent or a Lender hereunder. ~~By accepting the benefits of the Collateral,~~ The Lenders and each other Secured Party ~~that is~~ (by becoming a party hereto or otherwise obtaining the benefit of any Guaranty or any Collateral) irrevocably authorize (i) any Guarantor to be released from its obligations under any ~~such Hedging Agreement shall be deemed to have appointed~~ Guaranty as contemplated by Section 9.17 and (ii) the Administrative Agent to ~~serve as administrative agent~~ acknowledge the release of such Guarantor from its obligations under such Guaranty and ~~collateral agent under the Loan Documents and agreed to be bound~~ take any other actions in connection therewith, in each case in accordance with Section 9.17. Upon request by the ~~Loan Documents as a Secure~~Administrative Agent at any time, the Required Lenders will reaffirm in writing the authorization granted in the immediately preceding sentence.

Appears in 1 contract

Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.)

Common use of The Administrative Agent Clause in Contracts