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 and Issuing Banks. Each of the Lenders and each Issuing Bank hereby irrevocably 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. Any bank serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company, any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall have no duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall have no duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, any Borrower or any Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own bad faith, gross negligence or wilful misconduct. The Administrative Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by a Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for 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 and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII) with the consent of, the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the 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 the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agent, Documentation Agent or Joint Lead Arranger and Joint Bookrunner on the cover page of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.

Appears in 2 contracts

Sources: Credit Agreement (Kellogg Co), Credit Agreement (Kellogg Co)

Appears in 2 contracts

Sources: Credit Agreement (Allied Waste Industries Inc), Credit Agreement (Allied Waste Industries Inc)

Appears in 2 contracts

Sources: Credit Agreement (Carlyle Group L.P.), Credit Agreement (Carlyle Group L.P.)

Appears in 2 contracts

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

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 and Issuing Banks.~~ 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 ~~Bank~~ Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of hereof and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~Any bank~~ Except, in each case, as set forth in the sixth paragraph of this Article, the provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and no Borrower shall have rights as a third-party beneficiary of any of such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent~~Agent and the term “Lender” or “Lenders” shall, ~~and such bank~~ unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Company,~~ any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent: (a) ~~the Administrative Agent~~ shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) ~~the Administrative Agent~~ shall not have no any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.2 or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) shall not, except as expressly set forth herein and in the other Loan Documents, ~~the Administrative Agent shall~~ have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Company,~~ any Borrower or any ~~Subsidiary~~ of its Affiliates that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.2) or (ii) in the absence of its own gross negligence, bad ~~faith, gross negligence~~ faith or ~~wilful misconduct~~willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by a the Lead Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in herein or the occurrence of any ~~Loan Document~~Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, 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 any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for 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 and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs ~~and the provisions of Section 10.03~~ shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, (a) the Administrative Agent may resign at any time by ~~notifying~~ giving 15 Business Days’ prior written notice to the Lenders, the Swingline Lender, the Issuing Banks and the ~~Company~~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 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 commercial bank with an office in New York, New York. Upon any such resignation, the Required Lenders shall have the ~~right (~~right, in consultation ~~with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII)~~ with the ~~consent of~~Lead Borrower, ~~the Company, which shall not be unreasonably withheld)~~ 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 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 resignation, then the retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the ~~Lenders~~Lenders and the Issuing Banks, appoint a successor Administrative Agent ~~which~~ meeting the qualifications set forth above; provided that, 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~~hereunder 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 or the ~~Company~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Company~~ Lead Borrower and such successor. After an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~10.03~~ 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 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 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 Section 2.11 and 9.3) allowed in such judicial proceeding; and (y) 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 or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder. ~~None of~~ Anything herein to the ~~institutions named as~~ contrary notwithstanding, the Arrangers, and each Syndication ~~Agent, Documentation~~ Agent ~~or Joint Lead Arranger and Joint Bookrunner on the cover page of this Agreement shall, in their capacities as such,~~ shall not have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in their respective capacities, as applicable, as the Administrative Agent or a Lender hereunder. The Lenders and each other Secured Party (by becoming a party hereto or otherwise obtaining the benefit of any ~~kind~~ Guaranty or any Collateral) irrevocably authorize and direct the Administrative Agent to act as agent with respect to the Collateral under ~~this Agreement.~~each of the Collateral Documents and to enter into the Loan Documents relating to the Collateral for the benefit of the Lenders and 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 (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 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. ~~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 Issuing Banks.~~ Each of the Lenders and ~~each~~ the Issuing ~~Bank~~ Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement 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. ~~Any bank~~ The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the ~~Company, any~~ Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or to exercise any discretionary ~~powers~~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 under the circumstances as provided in ~~Section 10.02~~the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the ~~Company~~Borrower, any ~~Borrower~~ other Subsidiary or any ~~Subsidiary~~ other Affiliate of any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~10.02~~2.05(i) or Section 9.02) or in the absence of its own ~~bad faith,~~ gross negligence or wilful misconduct. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower, a ~~Borrower~~ Lender or ~~a Lender~~an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document~~Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person~~, and shall not incur any liability for relying thereon~~). The Administrative Agent may consult with legal counsel (who may be counsel for ~~any~~ 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 itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs and the provisions of Section 10.03~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign ~~at any time by notifying~~ upon 30 days’ notice to the Lenders, the Issuing Banks and the ~~Company~~Borrower. If the Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower and the Required Lenders. Upon receipt of any such ~~resignation~~notice of resignation or upon such removal, the Required Lenders shall have the ~~right (in consultation with~~right, ~~and (unless an Event of Default has occurred and is continuing pursuant to Article VII)~~ with the ~~consent of~~Borrower’s consent, ~~the Company, which shall not be unreasonably withheld)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the ~~Lenders~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be ~~a bank~~ an Approved Bank with an office in New York, New York, or an Affiliate of any such ~~bank~~Approved Bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by Holdings and the ~~Company~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by Holdings, the ~~Company~~ Borrower and such successor. After an the Administrative Agent’s resignation ~~hereunder~~hereunder and under the other Loan Documents, the provisions of this Article and Section ~~10.03~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder. ~~None~~ Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Revolving Facility Amendment or Refinancing Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Lender shall have any right individually to realize upon any of the ~~institutions named as Syndication~~ Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Lenders in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, ~~Documentation~~ as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Lenders at such sale or ~~Joint Lead Arranger~~ other disposition. Each Lender, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations, to have agreed to the foregoing provisions. Notwithstanding anything herein to the contrary, neither any Joint Bookrunner nor any Person named on the cover page of this Agreement ~~shall~~as a Joint Lead Arranger, ~~in their capacities as such,~~ a Syndication Agent or a Documentation Agent shall have any duties or ~~responsibilities of any kind~~ obligations under this ~~Agreement~~Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder.

Appears in 2 contracts

Sources: Credit Agreement (Skype S.a r.l.), Credit Agreement (Skype S.a r.l.)

Appears in 2 contracts

Sources: Credit Agreement (Seagate Technology), Credit Agreement (Seagate Technology)

Appears in 2 contracts

Sources: Credit Agreement (Time Warner Inc.), Credit Agreement (Time Warner Cable Inc.)

Appears in 2 contracts

Sources: Credit Facility Agreement (Exelis Inc.), Credit Facility Agreement (ITT Corp)

Appears in 2 contracts

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

Appears in 2 contracts

Sources: Credit Facility Agreement (Xylem Inc.), Credit Facility Agreement (Xylem Inc.)

Appears in 2 contracts

Sources: Credit Agreement (WMS Industries Inc /De/), Credit Agreement (WMS Industries Inc /De/)

Appears in 2 contracts

Sources: Credit Agreement (Tyson Foods Inc), Credit Agreement (Tyson Foods 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 and Issuing Banks.~~ Each of the Lenders and each of the Issuing ~~Bank~~ Banks hereby irrevocably appoints the Administrative Agent as its agent both as administrative agent and collateral agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of hereof and the ~~Loan~~ other Financing Documents, together with such actions and powers as are reasonably incidental thereto. ~~Any~~ The bank serving as the Administrative Agent hereunder and under the other Financing Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent,~~ Agent and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Company,~~ any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein or in the ~~Loan~~ other Financing Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby or thereby that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.02), and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for ~~the~~ any failure to disclose, any information relating to the ~~Company, any Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.02) or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~a Borrower~~ the Borrowers or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any Borrower~~the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs ~~and the provisions of Section 10.03~~ 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. With respect to the release of Collateral, the Lenders hereby irrevocably 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 property covered by this Agreement or the other Financing Documents (i) upon termination or expiration of the Commitments, the payment and satisfaction of all obligations arising with respect to the Loans, all fees and expenses, the expiration or termination of all the Letters of Credit and the reimbursement of all LC Disbursements; or (ii) constituting property being sold or disposed of in compliance with the provisions of the Financing Documents (and the Administrative Agent may rely in good faith conclusively on any certificate stating that the property is being sold or disposed of in compliance with the provisions of the Financing Documents, without further inquiry); provided, however, that (x) the Administrative Agent shall not be required to execute any release on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair any Liens upon all interests retained, all of which shall continue to constitute part of the property covered by the Financing Documents. With respect to perfecting security interests in Collateral which, in accordance with Article 9 of the Uniform Commercial Code or any comparable provision of any Lien perfection statute in any applicable jurisdiction, can be perfected only by possession, each Lender hereby appoints each other Lender its agent for the purpose of perfecting such interest. Should any Lender (other than the Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the Administrative Agent, and, promptly upon the Administrative Agent’s request, shall deliver such Collateral to the Administrative Agent or in accordance with the Administrative Agent’s instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any other Financing Document or to realize upon any Collateral for the Loans, it being understood and agreed that such rights and remedies may be exercised only by or with the approval of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent or any Lender may be the purchaser of any and all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities) 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 Loans as a credit on account of the purchase price for any collateral payable by the Agent at such sale. The Administrative Agent shall not be required to foreclose under, or otherwise exercise any rights and remedies under, any Mortgage if at the time that the Administrative Agent is required or directed to do so, (a) the Administrative Agent has not received environmental assessment reports reasonably satisfactory to it with respect to the property encumbered by such Mortgage, prepared by environmental testing firms reasonably satisfactory to it, indicating that the property encumbered by such Mortgage and the operations at such property are not in material violation of applicable Environmental Laws or (b) the Administrative Agent is not otherwise reasonably satisfied that there is no material environmental liability with respect to the applicable property or the operations at such property. In the event that a petition seeking relief under Title 11 of the United States Code or any other Federal, state or foreign bankruptcy, insolvency, liquidation or similar law is filed by or against any Borrower or any other Person obligated under the Financing Document, the Administrative Agent is authorized, to the fullest extent permitted by applicable law, to file a proof of claim on behalf of itself and the Lenders in such proceeding for the total amount of obligations owed by such Person. With respect to any such proof of claim which the Administrative Agent may file, each Lender acknowledges that without reliance on such proof of claim, such Lender shall make its own evaluation as to whether an individual proof of claim must be filed in respect of such obligations owed to such Lender and, if so, take the steps necessary to prepare and timely file such individual claim. Subject to the limitations set forth below, the Administrative Agent may, at its option, from time to time, at any time on or after a Default and for so long as the same is continuing or upon any other failure of a condition precedent to providing Loans and Letters of Credit hereunder, make such disbursements and advances (“Special Agent Advances”) which the Administrative Agent, in good faith, (a) deems necessary or desirable either to preserve or protect the Collateral or any portion thereof or (b) enhance the likelihood of, or maximize the amount of, repayment by the Borrowers and Guarantors of the Loans and other Obligations; provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (b) shall not exceed 10% of the Commitment or result in the total amount of Obligations outstanding to exceed the Commitment or (c) to pay any other amount chargeable to any Borrower or Guarantor pursuant to the terms of this Agreement or any of the other Financing Documents consisting of (i) costs, fees and expenses and (ii) payments to any Issuing Bank. Special Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by the Collateral; provided, that if a Special Agent Advance remains outstanding for more than 60 days, the Required Lenders may revoke the Administrative Agent’s authorization to make Special Agent Advances. Any such revocation must be in writing and shall become effective prospectively upon the Agent’s receipt thereof. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the interest rate then payable on Alternate Base Rate Loans from time to time and shall be payable on demand. Without limitation of its obligations pursuant to the first sentence of Section 2.01, each Lender agrees that it shall make available to the Administrative Agent, upon the Administrative Agent’s demand, in immediately available funds, the amount equal to such Lender’s pro rata share of each such Special Agent Advance. If such funds are not made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such funds, on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Effective Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at an interest rate equal to the LIBO Rate plus 2.5% per annum. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the ~~Company~~Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right (in consultation with~~right, ~~and (unless an Event of Default has occurred and is continuing pursuant to Article VII)~~ with the ~~consent of,~~ approval of the ~~Company, which shall~~ Borrowers (not to be unreasonably withheld) , except that no such approval shall be required upon the occurrence and continuance of a Default), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the ~~Lenders~~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~~bank with such an office. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Company~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Company~~ Borrowers and such successor. After an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~10.03~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document, any~~ related agreement or any document furnished hereunder or thereunder. ~~None~~ Each Lender acknowledges the potential conflict of interest of each other Lender as a result of Lenders holding disproportionate interests in the ~~institutions named as~~ Loans, and expressly consents to and waives any claim based upon such conflict of interest. The parties hereto agree that the titles Co-Syndication ~~Agent,~~ Agent and Co-Documentation Agent ~~or Joint Lead Arranger~~ are honorary and ~~Joint Bookrunner on~~ confer no duties upon such agents except as a Lender hereunder, provided that each Co-Syndication Agent and Co-Documentation Agent shall be entitled to the ~~cover page of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement~~rights and benefits specifically provided for herein.

Appears in 2 contracts

Sources: Credit Agreement (Phillips Van Heusen Corp /De/), Credit Agreement (Phillips Van Heusen Corp /De/)

Appears in 2 contracts

Sources: Credit Agreement (Zebra Technologies Corp), Credit Agreement (Zebra Technologies Corp/De)

Appears in 1 contract

Sources: Credit Agreement (Griffon Corp)

Appears in 1 contract

Sources: Credit Agreement (Argo Tech Corp)

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 and Issuing Banks.~~ Each of the Lenders and ~~each~~ the Issuing ~~Bank~~ Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement 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. ~~Any bank~~ In addition, to the extent required under the laws of any jurisdiction other than the United States, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender's or Issuing Bank's behalf. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the ~~Company, any Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or to exercise any discretionary ~~powers~~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 under the circumstances as provided in ~~Section 10.02~~the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, any ~~Borrower~~ Subsidiary or any ~~Subsidiary~~ other Affiliate of any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~10.02~~9.02) or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Company, a ~~Borrower~~ Lender or ~~a Lender~~an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document~~Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The Administrative Agent also ~~may rely~~ shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and ~~shall not incur~~ may act upon any ~~liability for relying thereon~~such statement prior to receipt of written confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any Borrower~~the 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 itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs and the provisions of Section 10.03~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the ~~appointment and acceptance~~ terms of ~~a successor Administrative Agent as provided in~~ this paragraph, the Administrative Agent may resign at any time ~~by notifying~~ from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks and the Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the ~~right (~~right, in consultation ~~with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII)~~ with ~~the consent of,~~ the Company, ~~which shall not be unreasonably withheld)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~intent to resign, then the retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the ~~Lenders~~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~~hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by the Company and such successor. ~~After an~~ Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Company, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent’s , shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent's resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~10.03~~ 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative ~~Agent~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder. ~~None~~ Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Second Restatement Effective Date, or delivering its signature page to an Assignment and Assumption pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Second Restatement Effective Date. No Secured Party shall have any right individually to realize upon any of the ~~institutions named as Syndication~~ 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, ~~Documentation~~ as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loan Documents Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or ~~Joint Lead~~ other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. Notwithstanding anything herein to the contrary, neither any Arranger ~~and Joint Bookrunner~~ nor any Person named on the cover page of this Agreement ~~shall~~as a Bookrunner, ~~in their capacities as such,~~ a Syndication Agent or a Documentation Agent shall have any duties or ~~responsibilities~~ obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and neither the Company nor any other Loan Party shall have any rights as a third party beneficiary of any ~~kind under this Agreement~~such provisions.

Appears in 1 contract

Sources: Credit Agreement (Vishay Intertechnology Inc)

Appears in 1 contract

Sources: Five Year Credit Agreement (Amerada Hess Corp)

Appears in 1 contract

Sources: Credit Agreement (Radiant Systems 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 and Issuing Banks.~~ (a) Each of the Lenders and each of the Issuing ~~Bank~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto~~. Any bank serving as~~ . (b) The Administrative Agent ~~hereunder~~ shall have the same rights and powers in its capacity as a Lender hereunder as any other Lender and may exercise the same as though it the Administrative Agent were not the Administrative Agent, and ~~such bank~~ the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Company,~~ any ~~Borrower~~ Credit Party or any Subsidiary or other Affiliate of any thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by this Agreement and 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 under the circumstances as provided in Section 10.02)~~Lenders, and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Company,~~ any ~~Borrower~~ Credit Party or any ~~Subsidiary~~ of their respective Subsidiaries that is communicated to or obtained by the ~~bank serving as~~ Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if provided herein, with the consent or ~~such~~ at the request of any other specified number ~~or percentage~~ of ~~the Lenders as shall be necessary under the circumstances as provided in Section 10.02)~~ Lenders, or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~a Borrower~~ the Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any~~ this Agreement or the other Loan ~~Document~~Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection ~~herewith~~herewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~any~~ this Agreement, the other Loan ~~Document~~ Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall not, except to the extent expressly instructed by the Required Lenders with respect to collateral security under the Security Documents, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. (e) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any~~ a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (f) The Administrative Agent may perform any and all of its ~~duties~~ duties, and exercise its rights and ~~powers~~ powers, by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through ~~their respective~~ its Related Parties. The exculpatory provisions of the preceding paragraphs ~~and the provisions of Section 10.03~~ shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to ~~their respective~~ its activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. . (g) Subject to the appointment and acceptance of a successor Administrative ~~Agent~~ Agent, as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Banks~~ Lenders and the Company. Upon any such resignation, the Required Lenders shall have the ~~right (~~right, in consultation ~~with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII)~~ with ~~the consent of,~~ the Company, ~~which shall not be unreasonably withheld)~~ to appoint a ~~successor~~successor Administrative Agent. If no successor shall have been so appointed ~~by the Required Lenders~~ and shall have accepted such appointment within 30 days after ~~the~~ such retiring Administrative Agent gives notice of its resignation, then ~~the~~ such retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the Lenders and the Issuing 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~~ Agent, by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. . (h) Each Lender acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and the other Loan ~~Document~~Documents, any related agreement or any document furnished hereunder or thereunder~~. None~~ . (i) The Administrative Agent shall not be responsible for monitoring the existence or performance of ~~the institutions~~ any Secured Cash Management Agreement or Secured Swap Agreement. (j) No Person named as a Co-Syndication Agent, Co-Documentation ~~Agent or~~ Agent, Joint Lead Arranger ~~and~~ or Joint Bookrunner ~~on the cover page of~~ in this Agreement ~~shall,~~ shall have any rights (other than pursuant to Section 10.03(b)) or obligations under this Agreement or any other Loan Document in ~~their capacities~~ its capacity as such. (k) To the extent required by any applicable law, ~~have~~ the Administrative Agent may withhold from any ~~duties~~ payment to any Lender an amount equal to any applicable withholding tax. If the IRS or ~~responsibilities~~ any Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from any amount paid to or for the account of any ~~kind~~ Lender for any reason (including because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrowers and without limiting or expanding the obligation of the Borrowers to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties, additions to tax or interest thereto, together with all expenses incurred, including legal expenses and any out-of-pocket expenses, whether or not such tax was correctly or legally imposed or asserted by the relevant Government Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Article IX. The agreements in this Article IX shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Loans and the repayment, satisfaction or discharge of all obligations under this Agreement. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender. For purposes of this paragraph (k), the term “Lender” includes any Issuing Lender. (a) 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 Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) 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 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

Appears in 1 contract

Sources: Credit Agreement (Lamar Media Corp/De)

Appears in 1 contract

Sources: Credit Agreement (Manhattan Bancorp)

The Administrative Agent. In order to expedite the transactions contemplated by this Agreement, ~~JPMCB~~ Chase is hereby appointed to act as Administrative Agent on behalf of the ~~Lenders and Issuing Banks~~Lenders. Each of the Lenders and each ~~Issuing Bank~~ assignee of any such Lender hereby irrevocably authorizes the Administrative Agent to take such actions on ~~its~~ 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. ~~Any bank serving~~ With respect to the Loans made by it hereunder, the Administrative Agent in its individual capacity and not as Administrative Agent ~~hereunder~~ shall have the same rights and powers ~~in its capacity as a Lender~~ as any other Lender and may exercise the same as though it were not the Administrative Agent, and ~~such bank~~ the Administrative Agent and its Affiliates in their respective individual capacities may accept deposits from, lend money to and generally engage in any kind of business with the ~~Company, any Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative ~~Agent hereunder~~Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have no any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to the ~~Company, any Borrower~~ Company or any ~~Subsidiary~~ of its Subsidiaries that is communicated to or obtained by the ~~bank~~ 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 under the circumstances as provided in Section 10.02) or in the absence of its own culpable negligence, bad ~~faith, gross negligence~~ faith or wilful misconduct. The Administrative Agent shall not be deemed to have knowledge of any Default other than a Default of the types specified in clause (a) and (b) of Article VII unless and until written notice thereof is given to the Administrative Agent by a Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any~~ the Loan ~~Document~~Documents, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any~~ the Loan ~~Document~~ Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for 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 and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs ~~and the provisions of Section 10.03~~ shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Banks~~ Lenders and the Company. Upon any such resignation, the Required Lenders shall have the ~~right (~~right, in consultation ~~with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII)~~ with ~~the consent of,~~ the Company, ~~which shall not be unreasonably withheld)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the 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 the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder. None of the ~~institutions named as~~ Syndication ~~Agent, Documentation~~ Agent or ~~Joint Lead Arranger and Joint Bookrunner on~~ the ~~cover page of this Agreement shall~~Co-Documentation Agents, in their capacities as such, shall have any duties or ~~responsibilities~~ obligations of any kind under this Agreement.

Appears in 1 contract

Sources: Credit Agreement (TRW Inc)

Appears in 1 contract

Sources: Credit Agreement (Burger King Holdings Inc)

Appears in 1 contract

Sources: Credit Agreement (Veritas Software Technology Corp)

Appears in 1 contract

Sources: Credit Agreement (Unisource Energy Corp)

Appears in 1 contract

Sources: Credit Agreement (Leggett & Platt Inc)

Appears in 1 contract

Sources: Interim Loan Agreement (Healthsouth Corp)

Appears in 1 contract

Sources: Credit Agreement (Trimas Corp)

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 and Issuing Banks.~~ Each of the Lenders and ~~each~~ the Issuing ~~Bank~~ Banks hereby irrevocably appoints Truist Bank, as successor by merger to SunTrust Bank, to serve as Administrative Agent and Collateral Agent under the Loan Documents, and authorizes the Administrative Agent and Collateral Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~Any bank~~ The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the ~~Company, any~~ Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or to exercise any discretionary ~~powers~~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 under the circumstances as provided in ~~Section 10.02~~the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the ~~Company~~Borrower, any ~~Borrower~~ other Subsidiary or any ~~Subsidiary~~ other Affiliate of any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~10.02~~9.02) or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower, a ~~Borrower~~ Lender or ~~a Lender,~~ an Issuing Bank and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document~~Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. Neither the Administrative Agent nor any of its Affiliates and its and their respective partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives shall be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (i)‎ be obligated to ascertain, monitor or inquire as to whether any Lender or prospective Lender is a Disqualified Lender‎ or (ii) have any liability with respect to or arising out of any assignment of Loans, or disclosure of confidential information, to any Disqualified‎ Lender. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person~~, and shall not incur any liability for relying thereon~~). The Administrative Agent may consult with legal counsel (who may be counsel for ~~any~~ or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all ~~its~~ of their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs and the provisions of Section 10.03~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign ~~at any time by notifying~~ upon 30 days’ notice to the Lenders, the Issuing Banks and Holdings. If the ~~Company~~Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of Holdings and the Required Lenders. Upon receipt of any such ~~resignation~~notice of resignation or upon such removal, the Required Lenders shall have the ~~right (in consultation with~~right, ~~and~~ with Holdings’ consent (unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is ~~continuing pursuant to Article VII) with the consent of~~continuing), ~~the Company, which shall not be unreasonably withheld)~~ to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (~~in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which~~ but shall not ~~unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent~~be obligated to) on behalf of the ~~Lenders~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be ~~a bank~~ an Approved Bank with an office in New York, New York, or an Affiliate of any such ~~bank~~Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and Holdings may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of Holdings, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of ~~its~~ a successor’s appointment as Administrative Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative ~~Agent~~Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the ~~Company~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Company~~ Borrower and such successor. After an the retiring or removed Administrative Agent’s resignation ~~hereunder~~or removal hereunder and under the other Loan Documents, the provisions of this Article and Section ~~10.03~~ 9.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it the retiring or removed Administrative Agent was acting as Administrative Agent. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Joint Bookrunners or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Joint Bookrunners or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder. ~~None~~ Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment or Refinancing Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Lender shall have any right individually to realize upon any of the ~~institutions named as Syndication~~ Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Lenders in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, ~~Documentation~~ as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Lenders at such sale or ~~Joint Lead Arranger~~ other disposition. Each Lender, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations, to have agreed to the foregoing provisions. Notwithstanding anything herein to the contrary, neither a Joint Bookrunner nor any Person named on the cover page of this Agreement ~~shall, in their capacities~~ as ~~such,~~ a Joint Lead Arranger shall have any duties or ~~responsibilities~~ obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder, including under Section 9.03, fully as if named as an indemnitee or indemnified person therein and irrespective of whether the indemnified losses, claims, damages, liabilities and/or related expenses arise out of, in connection with or as a result of matters arising prior to, on or after the effective date of any ~~kind~~ Loan Document. To the extent required by any applicable Requirements of Law (as determined in good faith by the Administrative Agent), the Administrative Agent may withhold from any payment to any Lender under ~~this Agreement.~~any Loan Document an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.17, each Lender shall indemnify the Administrative Agent against, and shall make payable in respect thereof within 30 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the U.S. Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts paid to or for the account of such Lender for any reason (including because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective)

Appears in 1 contract

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

Appears in 1 contract

Sources: Credit Agreement (SFG Capital Corp)

Appears in 1 contract

Sources: Credit Agreement (Metaldyne Corp)

Appears in 1 contract

Sources: Credit Agreement (Indalex Holding Corp.)

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 and Issuing Banks.~~ Each of the Lenders and ~~each~~ the Issuing ~~Bank~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its ~~behalf~~ 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~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~Any bank~~ The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, invest in and generally engage in any kind of business with the ~~Company, any Borrower~~ Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Company,~~ any ~~Borrower~~ Loan Party or any Subsidiary of any Loan Party that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. Each party hereto agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~a Borrower~~ the Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~herewith~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth herein or therein, or in connection herewith or therewith, (v) the validity, enforceability, adequacy, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or ~~document,~~ document or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, (i) any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication believed by it to be genuine and to have been authorized, signed or sent by the proper Person~~. The Administrative Agent also may rely upon~~ , (ii) any statement made to it orally or by telephone and believed by it to be made or authorized by the proper ~~Person~~Person or (iii) any statement made by a director, ~~and shall not incur~~ authorized signatory or employee of any ~~liability for relying thereon~~Person regarding any matters which may reasonably be assumed to be within his or her knowledge or within his or her power to verify. The Administrative Agent may consult with legal counsel (who may be counsel for the Company or any ~~Borrower~~of its Subsidiaries), 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 does not warrant the accuracy or completeness of any electronic communications, or the adequacy of any electronic platform and expressly disclaims liability for errors or omissions in any electronic platform and electronic communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Administrative Agent in connection with any electronic communications or any electronic platform. In no event shall the Administrative Agent have any liability to any Loan Party, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Administrative Agent’s transmission of communications through the internet or any electronic platform. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs ~~and the provisions of Section 10.03~~ shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the~~ The Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Banks~~ Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right ~~(in consultation with, and~~ to appoint a successor with (unless an Event of Default ~~has~~ shall have occurred and ~~is continuing pursuant to Article VII~~be continuing) ~~with~~ the prior written consent ~~of,~~ of the ~~Company,~~ Company (which consent shall not be unreasonably withheld~~) to appoint a successor~~). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative ~~Agent may (in consultation with,~~ Agent’s resignation shall nonetheless become effective and (~~unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if~~ 1) the retiring Administrative Agent shall ~~so request, designate~~ be discharged from its duties and ~~approve a successor Administrative Agent~~obligations hereunder and (2) ~~on behalf~~ the Required Lenders shall perform the duties of the ~~Lenders~~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~~ privileges, obligations and duties of the retiring (or retired) Administrative ~~Agent,~~ Agent and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring ~~Administrative~~ Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder. ~~None~~ Except as otherwise provided in Section 10.02(b) with respect to this Agreement, the Administrative Agent may, with the prior consent of the ~~institutions named as Syndication Agent~~Required Lenders (but not otherwise), ~~Documentation Agent~~ consent to any modification, supplement or waiver under any of the Loan Documents. Notwithstanding anything herein to the contrary, the Joint Lead ~~Arranger~~ Arrangers, Joint Bookrunners, Syndication Agents and ~~Joint Bookrunner~~ Documentation Agents named on the cover page of this Agreement ~~shall, in their capacities as such,~~ shall not have any duties or ~~responsibilities of any kind~~ liabilities under this Agreement, except in their capacity, if any, as Lenders. 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, each other Agent and each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender. In addition, unless either (1) the immediately preceding sub-clause (i) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with the immediately preceding sub-clause (iv), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, each other Agent and each other 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 Party, that none of the Administrative Agent, any other Agent or any Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto). The Administrative Agent and each Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

Appears in 1 contract

Sources: Credit Agreement (Brunswick Corp)

Appears in 1 contract

Sources: Credit Agreement (J Crew Group Inc)

Appears in 1 contract

Sources: Credit Agreement (Seagate Technology Malaysia Holding Co Cayman Islands)

Appears in 1 contract

Sources: Credit Agreement (Indalex Holdings Finance Inc)

Appears in 1 contract

Sources: Credit Agreement (Hess Corp)

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 and Issuing Banks.~~ Each of the Lenders and ~~each~~ the Issuing ~~Bank~~ Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement 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. ~~Any bank~~ In addition, to the extent required under the laws of any jurisdiction other than the United States, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the ~~Company, any Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or to exercise any discretionary ~~powers~~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 under the circumstances as provided in ~~Section 10.02~~the Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, any ~~Borrower~~ Subsidiary or any ~~Subsidiary~~ other Affiliate of any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~10.02~~9.02) or in the absence of its own ~~bad faith,~~ gross negligence or wilful misconduct. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Company, a ~~Borrower~~ Lender or ~~a Lender~~an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document~~Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The Administrative Agent also ~~may rely~~ shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper ~~Person~~Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and ~~shall not incur~~ may act upon any ~~liability for relying thereon~~such statement prior to receipt of written confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any Borrower~~the 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 itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs and the provisions of Section 10.03~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the ~~appointment and acceptance~~ terms of ~~a successor Administrative Agent as provided in~~ this paragraph, the Administrative Agent may resign at any time ~~by notifying~~ from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks and the Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the ~~right (~~right, in consultation ~~with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII)~~ with ~~the consent of,~~ the Company, ~~which shall not be unreasonably withheld)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~intent to resign, then the retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the ~~Lenders~~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~~hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed ~~between~~ by the Company and such successor. ~~After an~~ Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Company, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation ~~hereunder~~from its capacity as such, the provisions of this Article and Section ~~10.03~~ 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative ~~Agent~~Agent and in respect of the matters referred to in the proviso under clause (a) above. Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder. ~~None~~ Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Secured Party shall have any right individually to realize upon any of the ~~institutions named as Syndication~~ 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, ~~Documentation~~ as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loan Documents Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or ~~Joint Lead~~ other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. Notwithstanding anything herein to the contrary, neither the Arranger ~~and Joint Bookrunner~~ nor any Person named on the cover page of this Agreement ~~shall~~as a Bookrunner, ~~in their capacities as such,~~ a Syndication Agent or a Documentation Agent shall have any duties or ~~responsibilities~~ obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and neither the Company nor any other Loan Party shall have any rights as a third party beneficiary of any ~~kind under this Agreement~~such provisions.

Appears in 1 contract

Sources: Credit Agreement (Vishay Intertechnology Inc)

The Administrative Agent. ~~In order to expedite~~ Each of the ~~transactions contemplated by this Agreement~~Lenders, ~~JPMCB is hereby appointed to act as Administrative Agent~~ on behalf of itself and any of its Affiliates that are Secured Parties, and the ~~Lenders and~~ Issuing ~~Banks. Each of the Lenders and each Issuing Bank~~ Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~Any~~ In furtherance of the foregoing, and not in limitation, each of the Lenders authorizes the Administrative Agent to enter into one or more intercreditor agreements acceptable to the Administrative Agent in its sole discretion with parties to any Receivables Purchase 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 remedies in respect of any equity interests in any Receivables Subsidiary and/or any notes issued by any Receivables Subsidiary to the Company and those Subsidiaries from time to time party to a Receivables Purchase Facility in connection with any Receivables Purchase Facility, in any case, that have been pledged to secure the Obligations and/or (ii) disclaimers of interests on, and releases of security interests in, any Receivables. In addition, to the extent required under the laws of any jurisdiction other than the United States of America, each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, and each of 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. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders (including the Swingline Lender and the Issuing Banks), and neither the Company 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) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Company, any Borrower~~ Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Company, any Borrower~~ Company or any ~~Subsidiary~~ of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.02) or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful misconduct~~willful misconduct as determined by a final nonappealable judgment of a court of competent jurisdiction. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~a Borrower~~ the Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of 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 any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any Borrower~~the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs ~~and the provisions of Section 10.03~~ shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right to appoint a successor (~~in consultation with~~such successor to be approved by the Company, ~~and (unless~~ such approval not to be unreasonably withheld or delayed; provided, however, if an Event of Default ~~has occurred and is continuing pursuant to Article VII) with~~ shall exist at such time, no approval of the ~~consent of, the Company, which~~ Company shall ~~not~~ be ~~unreasonably withheld) to appoint a successor~~required hereunder). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the ~~Lenders~~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. The fees payable by ~~the Company~~ any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between ~~the Company~~ such Borrower and such successor. After an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~10.03~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Company and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document, any~~ related agreement or any document furnished hereunder or ~~thereunder~~thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. None of the ~~institutions named~~ Lenders, if any, identified in this Agreement as a Co-Syndication Agent or a Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Co-Syndication Agents or Co-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 interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the UCC. Each Lender authorizes the Administrative Agent to enter into each of the Security Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Security Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties upon the terms of the Security Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders hereby authorize the Administrative Agent, ~~Documentation~~ 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 ~~Joint Lead Arranger~~ (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and ~~Joint Bookrunner~~ 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 any manner discharge, affect or impair the Obligations or any Liens upon (or 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 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 case of the pendency of any proceeding with respect to any Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any 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 ~~cover page~~ Company) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of ~~this Agreement shall~~the 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 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, each Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in ~~their capacities~~ 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 ~~such~~the Administrative Agent, ~~have any duties or responsibilities of any kind~~ under ~~this Agreement.~~the Loan Documents (including under Sec

Appears in 1 contract

Sources: Credit Agreement (Scotts Miracle-Gro Co)

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 and Issuing Banks.~~ Each of the ~~Lenders~~ Lenders, the Issuing Lender and ~~each Issuing Bank~~ the Swingline Lender hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof or thereof, together with such actions and powers as are reasonably incidental thereto. ~~Any bank~~ The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Company, any~~ Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing by the Required ~~Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02)~~Lenders, and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Company, any~~ Borrower or any ~~Subsidiary~~ of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders ~~(or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02)~~ or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by a the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection ~~herewith~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, 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 any Loan Document~~herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the Credit Agreement proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any Borrower~~a Credit Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs ~~and the provisions of Section 10.03~~ shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject~~ The Borrower by its execution and delivery of this Agreement hereby consents to the ~~appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the~~ foregoing. The Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Banks~~ Lender, the Swingline Lender and the ~~Company~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right (~~right, in consultation ~~with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII)~~ with the ~~consent of~~Borrower, ~~the Company, which shall not be unreasonably withheld)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative ~~Agent may (in consultation with,~~ Agent's resignation shall nonetheless become effective and (~~unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if~~ 1) the retiring Administrative Agent shall ~~so request, designate~~ be discharged from its duties and ~~approve a successor Administrative Agent~~obligations hereunder and (2) ~~on behalf~~ the Required Lenders shall perform the duties of the ~~Lenders~~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~~hereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by the ~~Company~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Company~~ Borrower and such successor. After an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~10.03~~ 9.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in Credit Agreement taking or not taking action under or based upon this Agreement, any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder. ~~None~~ Anything herein to the contrary notwithstanding, none of the ~~institutions named as Syndication Agent, Documentation Agent or Joint Lead Arranger and Joint Bookrunner~~ parties indicated on the cover page ~~of this Agreement shall~~hereof as a Bookrunner, ~~in their capacities as such~~Lead Arranger, Joint Arranger, Syndication Agent or Documentation Agent, shall have any duties or responsibilities ~~of any kind~~ under this Agreement, except in their capacity, if any, as the Administrative Agent or a Lender hereunder.

Appears in 1 contract

Sources: Credit Agreement (Panamsat Corp /New/)

Appears in 1 contract

Sources: Credit Agreement (Burger King Holdings Inc)

Appears in 1 contract

Sources: Credit Agreement (Metaldyne Corp)

Appears in 1 contract

Sources: 364 Day Credit Agreement (E TRADE FINANCIAL Corp)

The Administrative Agent. ~~In order to expedite~~ (a) The Lenders hereby appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. as the ~~transactions contemplated by this Agreement, JPMCB is hereby appointed to act as~~ Administrative Agent ~~on behalf of the Lenders~~ and ~~Issuing Banks. Each of the Lenders and each Issuing Bank hereby irrevocably authorizes~~ authorize the Administrative Agent to take such ~~actions~~ action as agent on ~~its~~ their behalf and to exercise such powers under this Agreement and the other Credit Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are ~~delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are~~ reasonably incidental thereto. ~~Any bank serving as~~ The Administrative Agent ~~hereunder~~ will not receive a fee for its services hereunder. The Administrative Agent shall act solely as the agent of the Lenders and no Borrower Party nor any other Person shall be a third party beneficiary of the Administrative Agent’s rights and duties under the Credit Documents. (b) If applicable, the Administrative Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and ~~such bank~~ the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Company,~~ any Borrower ~~or any Subsidiary or other Affiliate thereof~~ Party as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth in the ~~Loan~~ Credit Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is ~~continuing,~~ continuing and (b) the Administrative Agent shall not have no any duty to take any discretionary action or exercise any discretionary ~~powers,~~ powers except ~~discretionary rights and powers expressly contemplated by~~ as provided in the ~~Loan~~ Credit Documents ~~that the Administrative Agent is required to exercise~~ or as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall have no duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, any Borrower or any Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacityLenders. The Administrative Agent shall not be liable for any action taken or not taken by it ~~with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or~~ in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative ~~Agent by a Borrower or a Lender~~Agent, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any ~~Loan~~ Credit Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, or (iii~~) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv~~) the validity, enforceability, effectiveness or genuineness of any ~~Loan~~ Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itthe Administrative Agent with due care; provided that the Administrative Agent shall be liable for the acts of such sub-agents not appointed with due care. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective ~~Related Parties~~Affiliates. The exculpatory provisions of ~~the preceding paragraphs and the provisions of~~ this Section ~~10.03~~ 9.01 shall apply to any such sub-agent and to the ~~Related Parties~~ Affiliates of the Administrative Agent and any such sub-agent, and shall apply to their respective activities ~~in connection with the syndication of the credit facilities provided for herein as well as activities~~ as Administrative Agent. ~~Subject to the appointment and acceptance of a successor Administrative Agent as provided~~ Anything in this ~~paragraph~~Agreement notwithstanding, in no event shall the Administrative Agent ~~may resign at~~ be liable for special, indirect or consequential loss or damage of any ~~time by notifying~~ kind whatsoever (including lost profits), even if the ~~Lenders,~~ Administrative Agent has been advised of such loss or damage and regardless of the ~~Issuing Banks and the Company~~form of action. Upon any such resignation, the Required Lenders shall have the right (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII) with the consent of, the Company, which The Administrative Agent shall not be ~~unreasonably withheld) to appoint a successor. If no successor shall have been so appointed~~ liable for any error of judgment made in good faith by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (in consultation with, and (unless an ~~Event of Default has occurred and is continuing pursuant to Article VII), with the consent~~ officer or officers of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the 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 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~~ unless it shall be conclusively determined by a court of competent jurisdiction that the ~~retiring~~ Administrative Agent ~~shall be discharged from its duties and obligations hereunder. The fees payable by~~ was grossly negligent or engaged in willful misconduct in ascertaining the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Administrative Agent’s resignation hereunder, the provisions of this Article and Section 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. pertinent facts. (d) Each Lender and each Secured Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into ~~this Agreement~~the applicable Credit Documents. Each Lender and each Secured Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon ~~this Agreement, any other Loan Document~~the applicable Credit Documents, any related agreement or any document furnished hereunder or thereunder~~. None~~ . (e) The Administrative Agent shall not resign or assign its role as Administrative Agent without the prior written consent of the ~~institutions named~~ Borrower (such consent not to be unreasonably withheld, conditioned or delayed) and may not be removed so long as ~~Syndication~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank, N.A. or its Affiliate is a Lender; provided that the Administrative Agent may assign its role as Administrative Agent without the prior written consent of the Borrower or any other Person (x) to an Affiliate at any time and (y) if it is prohibited from acting as Administrative Agent by any law, regulation, rule or order of any Governmental Authority, to any other Person at any time upon the promulgation of such law, regulation, rule or order; provided, further, that, if ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank, N.A. or its Affiliate ceases to be a Lender, the Administrative Agent may resign as Administrative Agent without further action by any Person. Upon any resignation or removal of the Administrative Agent, ~~Documentation~~ the Lenders shall have the right to appoint a successor, which successor must be a Lender or an Affiliate thereof. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor or ~~Joint Lead Arranger~~ assignee, such successor or assignee shall succeed to and ~~Joint Bookrunner on~~ become vested with all the ~~cover page~~ rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Credit Documents. After the Administrative Agent’s resignation, assignment or removal hereunder, the provisions of this ~~Agreement shall~~Section 9.01 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Affiliates in ~~their capacities as such, have any duties or responsibilities~~ respect of any ~~kind under this Agreement~~actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Blackstone Private Credit Fund)

Appears in 1 contract

Sources: Credit Agreement (Argo Tech Corp)

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 and Issuing Banks.~~ Each of the Lenders and ~~each~~ the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of subordination agreements in respect of Subordinated Indebtedness (if any) 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. ~~Any~~ The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Company, any~~ Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Company, any~~ Borrower or any ~~Subsidiary~~ of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.02) or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by a the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of 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 any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs ~~and the provisions of Section 10.03~~ shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Banks~~ Bank and the ~~Company~~Borrower. The Administrative Agent shall not be removed at any time or for any reason without its prior written consent. Upon any such resignation, the Required Lenders shall have the ~~right (~~right, in consultation ~~with~~with the Borrower, ~~and (unless an~~ to appoint a successor. Notwithstanding the foregoing, if any Event of Default has occurred and is ~~continuing pursuant to Article VII) with~~ continuing, no consent of the ~~consent of,~~ Borrower shall be required for the ~~Company, which shall not be unreasonably withheld) to appoint~~ appointment of a ~~successor~~successor Administrative Agent. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the ~~Lenders~~Lenders and the Issuing 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 the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Company~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Company~~ Borrower and such successor. After an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~10.03~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder. None of the ~~institutions named~~ Lenders, if any, identified in this Agreement as a Syndication Agent or Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. The Administrative Agent is a “representative” of the Holders of Secured Obligations within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Secured Obligations (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Holders of Secured Obligations upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of Secured Obligations any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Holders of Secured Obligations. The Lenders hereby authorize the Administrative Agent, ~~Documentation~~ 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(c); (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or ~~Joint Lead Arranger~~ (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and ~~Joint Bookrunner~~ upon at least five Business Days’ prior written request by the Borrower to the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Holders of Secured Obligations herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent shall not be required to execute any such document on ~~the cover page of this Agreement shall~~terms which, in ~~their capacities as such~~the Administrative Agent’s opinion, ~~have~~ would expose the Administrative Agent to liability or create any ~~duties~~ obligation or ~~responsibilities~~ entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any ~~kind under this Agreement~~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.

Appears in 1 contract

Sources: Credit Agreement (Innerworkings Inc)

Appears in 1 contract

Sources: Credit Agreement (Lamar Advertising Co/New)

Appears in 1 contract

Sources: Credit Agreement (Smithfield Foods 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 and Issuing Banks.~~ (a) Each of the Lenders and each of the Issuing ~~Bank~~ Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto~~. Any bank serving as~~ . (b) The Administrative Agent ~~hereunder~~ shall have the same rights and powers in its capacity as a Lender hereunder as any other Lender and may exercise the same as though it the Administrative Agent were not the Administrative Agent, and ~~such bank~~ the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Company,~~ any ~~Borrower~~ Credit Party or any Subsidiary or other Affiliate of any thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by this Agreement and 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 under the circumstances as provided in Section 10.02)~~Lenders, and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Company,~~ any ~~Borrower~~ Credit Party or any ~~Subsidiary~~ of their respective Subsidiaries that is communicated to or obtained by the ~~bank serving as~~ Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or, if provided herein, with the consent or ~~such~~ at the request of any other specified number ~~or percentage~~ of ~~the Lenders as shall be necessary under the circumstances as provided in Section 10.02)~~ Lenders, or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~a Borrower~~ the Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any~~ this Agreement or the other Loan ~~Document~~Documents, (ii) the contents of any certificate, report or other document delivered hereunder or under any of the other Loan Documents or in connection ~~herewith~~herewith of therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of ~~any~~ this Agreement, the other Loan ~~Document~~ Documents or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV V or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall not, except to the extent expressly instructed by the Required Lenders with respect to collateral security under the Security Documents, be required to initiate or conduct any litigation or collection proceedings hereunder or under any other Loan Document. (e) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any~~ a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (f) The Administrative Agent may perform any and all of its ~~duties~~ duties, and exercise its rights and ~~powers~~ powers, by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through ~~their respective~~ its Related Parties. The exculpatory provisions of the preceding paragraphs ~~and the provisions of Section 10.03~~ shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to ~~their respective~~ its activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. . (g) Subject to the appointment and acceptance of a successor Administrative ~~Agent~~ Agent, as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing ~~Banks~~ Lenders and the Company. Upon any such resignation, the Required Lenders shall have the ~~right (~~right, in consultation ~~with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII)~~ with ~~the consent of,~~ the Company, ~~which shall not be unreasonably withheld)~~ to appoint a ~~successor~~successor Administrative Agent. If no successor shall have been so appointed ~~by the Required Lenders~~ and shall have accepted such appointment within 30 days after ~~the~~ such retiring Administrative Agent gives notice of its resignation, then ~~the~~ such retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the Lenders and the Issuing 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~~ Agent, by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for ~~the~~ its benefit ~~of such retiring Administrative Agent, its sub-agents and their respective Related Parties~~ in respect of any actions taken or omitted to be taken by ~~any of them~~ it while it was acting as Administrative Agent. . (h) Each Lender acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Issuing Lender or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and the other Loan ~~Document~~Documents, any related agreement or any document furnished hereunder or thereunder~~. None~~ . (i) The Administrative Agent shall not be responsible for monitoring the existence or performance of ~~the institutions~~ any Secured Cash Management Agreement or Secured Swap Agreement. (j) No Person named as a Syndication Agent, Co-Documentation ~~Agent or~~ Agent, Joint Lead Arranger ~~and~~ or Joint Bookrunner ~~on the cover page of~~ in this Agreement ~~shall,~~ shall have any rights (other than pursuant to Section 10.03(b)) or obligations under this Agreement or any other Loan Document in ~~their capacities~~ its capacity as such. (k) To the extent required by any applicable law, ~~have~~ the Administrative Agent may withhold from any ~~duties~~ payment to any Lender an amount equal to any applicable withholding tax. If the IRS or ~~responsibilities~~ any Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from any amount paid to or for the account of any ~~kind~~ Lender for any reason (including because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrowers and without limiting or expanding the obligation of the Borrowers to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties, additions to tax or interest thereto, together with all expenses incurred, including legal expenses and any out-of-pocket expenses, whether or not such tax was correctly or legally imposed or asserted by the relevant Government Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Article IX. The agreements in this Article IX shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Loans and the repayment, satisfaction or discharge of all obligations under this Agreement. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender. For purposes of this paragraph (k), the term “Lender” includes any Issuing Lender. (l) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and each Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA or otherwise) of one or more Benefit Plans in connection with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit or, the Commitments or this Agreement, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, 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. (m) In addition, (I) unless either (1) sub-clause (i) in the immediately preceding clause (l) is true with respect to a Lender or (II) if such sub-clause (i) is not true with respect to a Lender and such2) a Lender has not provided another representation, warranty and covenant as provided in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and each Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that: (i) none of the Administrative Agent, or any Lead Arranger or any of their respective Affiliates is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto),

Appears in 1 contract

Sources: Credit Agreement (Lamar Media Corp/De)

Appears in 1 contract

Sources: Credit Agreement (Sherwin Williams Co)

Appears in 1 contract

Sources: Credit Agreement (Carlyle Group L.P.)

Appears in 1 contract

Sources: Credit Agreement (Mascotech Inc)

The Administrative Agent. May File Proofs of Claim; Credit Bidding. In ~~order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent on behalf~~ case of the ~~Lenders and Issuing Banks. Each~~ pendency of ~~the Lenders and each Issuing Bank hereby irrevocably authorizes~~ any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, 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. Any bank serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company, any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (~~a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless~~ irrespective of whether ~~a Default has occurred~~ the principal of any Loan shall then be due and ~~is continuing, (b)~~ payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have ~~no duty~~ made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise (a) to ~~take~~ 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 ~~discretionary action~~ 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 due the Lenders and the Administrative Agent under Sections 2.03(h), 2.09 and 11.04) allowed in such judicial proceeding; and (b) to collect and receive any monies or ~~exercise~~ other property payable or deliverable on any ~~discretionary powers~~such claims and to distribute the same; and any custodian, ~~except discretionary rights and powers expressly contemplated~~ 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 ~~Loan Documents~~ Administrative Agent and, in the event that the Administrative Agent ~~is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as~~ shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall have no duty to disclose, and shall not be liable for the failure to disclose, any information relating consent to the ~~Company~~making of such payments directly to the Lenders, ~~any Borrower or any Subsidiary that is communicated~~ to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own bad faith, gross negligence or wilful misconduct. The Administrative Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given pay to the Administrative Agent ~~by a Borrower or a Lender~~any amount due for the reasonable compensation, expenses, disbursements and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for 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 and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties advances of the Administrative Agent and ~~any such sub-agent~~its agents and counsel, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, any other amounts due the Administrative Agent ~~may resign at any time by notifying the Lenders, the Issuing Banks~~ under Sections 2.09 and the Company. Upon any such resignation, the Required Lenders shall have the right (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII) with the consent of, the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the 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 the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agent, Documentation Agent or Joint Lead Arranger and Joint Bookrunner on the cover page of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement10.

Appears in 1 contract

Sources: Credit Agreement (Roadrunner Transportation Systems, Inc.)

Appears in 1 contract

Sources: Credit Agreement (Cephalon 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 and Issuing Banks.~~ Each of the Lenders and each of the Issuing ~~Bank~~ Banks hereby irrevocably appoints the Administrative Agent as its agent both as administrative agent and collateral agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of hereof and the ~~Loan~~ other Financing Documents, together with such actions and powers as are reasonably incidental thereto. ~~Any~~ The bank serving as the Administrative Agent hereunder and under the other Financing Documents shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative ~~Agent,~~ Agent and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Company,~~ any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein or in the ~~Loan~~ other Financing Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby or thereby that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.02), and (c) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for ~~the~~ any failure to disclose, any information relating to the ~~Company, any Borrower~~ Borrowers or any ~~Subsidiary~~ of their Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.02) or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by ~~a Borrower~~ the Borrowers or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any Borrower~~the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs ~~and the provisions of Section 10.03~~ 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. With respect to the release of Collateral, the Lenders hereby irrevocably 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 property covered by this Agreement or the other Financing Documents (i) upon termination or expiration of the Commitments, the payment and satisfaction of all obligations arising with respect to the Loans, all fees and expenses, the expiration or termination of all the Letters of Credit and the reimbursement of all LC Disbursements; or (ii) constituting property being sold or disposed of in compliance with the provisions of the Financing Documents (and the Administrative Agent may rely in good faith conclusively on any certificate stating that the property is being sold or disposed of in compliance with the provisions of the Financing Documents, without further inquiry); provided, however, that (x) the Administrative Agent shall not be required to execute any release on terms which, in the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair any Liens upon all interests retained, all of which shall continue to constitute part of the property covered by the Financing Documents. With respect to perfecting security interests in Collateral which, in accordance with Article 9 of the Uniform Commercial Code or any comparable provision of any Lien perfection statute in any applicable jurisdiction, can be perfected only by possession, each Lender hereby appoints each other Lender its agent for the purpose of perfecting such interest. Should any Lender (other than the Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the Administrative Agent, and, promptly upon the Administrative Agent’s request, shall deliver such Collateral to the Administrative Agent or in accordance with the Administrative Agent’s instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any other Financing Document or to realize upon any Collateral for the Loans, it being understood and agreed that such rights and remedies may be exercised only by or with the approval of the Administrative Agent. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent or any Lender may be the purchaser of any and all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities) 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 Loans as a credit on account of the - 72 - purchase price for any collateral payable by the Agent at such sale. The Administrative Agent shall not be required to foreclose under, or otherwise exercise any rights and remedies under, any Mortgage if at the time that the Administrative Agent is required or directed to do so, (a) the Administrative Agent has not received environmental assessment reports reasonably satisfactory to it with respect to the property encumbered by such Mortgage, prepared by environmental testing firms reasonably satisfactory to it, indicating that the property encumbered by such Mortgage and the operations at such property are not in material violation of applicable Environmental Laws or (b) the Administrative Agent is not otherwise reasonably satisfied that there is no material environmental liability with respect to the applicable property or the operations at such property. In the event that a petition seeking relief under Title 11 of the United States Code or any other Federal, state or foreign bankruptcy, insolvency, liquidation or similar law is filed by or against any Borrower or any other Person obligated under the Financing Document, the Administrative Agent is authorized, to the fullest extent permitted by applicable law, to file a proof of claim on behalf of itself and the Lenders in such proceeding for the total amount of obligations owed by such Person. With respect to any such proof of claim which the Administrative Agent may file, each Lender acknowledges that without reliance on such proof of claim, such Lender shall make its own evaluation as to whether an individual proof of claim must be filed in respect of such obligations owed to such Lender and, if so, take the steps necessary to prepare and timely file such individual claim. Subject to the limitations set forth below, the Administrative Agent may, at its option, from time to time, at any time on or after a Default and for so long as the same is continuing or upon any other failure of a condition precedent to providing Loans and Letters of Credit hereunder, make such disbursements and advances (“Special Agent Advances”) which the Administrative Agent, in good faith, (a) deems necessary or desirable either to preserve or protect the Collateral or any portion thereof or (b) enhance the likelihood of, or maximize the amount of, repayment by the Borrowers and Guarantors of the Loans and other Obligations; provided, that, the aggregate principal amount of the Special Agent Advances pursuant to this clause (b) shall not exceed 10% of the Commitment or result in the total amount of Obligations outstanding to exceed the Commitment or (c) to pay any other amount chargeable to any Borrower or Guarantor pursuant to the terms of this Agreement or any of the other Financing Documents consisting of (i) costs, fees and expenses and (ii) payments to any Issuing Bank. Special Agent Advances shall be repayable on demand and together with all interest thereon shall constitute Obligations secured by the Collateral; provided, that if a Special Agent Advance remains outstanding for more than 60 days, the Required Lenders may revoke the Administrative Agent’s authorization to make Special Agent Advances. Any such revocation must be in writing and shall become effective prospectively upon the Agent’s receipt thereof. Special Agent Advances shall not constitute Loans but shall otherwise constitute Obligations hereunder. Interest on Special Agent Advances shall be payable at the interest rate then payable on Alternate Base Rate Loans from time to time and shall be payable on demand. Without limitation of its obligations pursuant to the first sentence of Section 2.01, each Lender agrees that it shall make available to the Administrative Agent, upon the Administrative Agent’s demand, in immediately available funds, the amount equal to such Lender’s pro rata share of each such Special Agent Advance. If such funds are not made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such funds, on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Effective Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at an interest rate equal to the LIBO Rate plus 2.5% per annum. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the ~~Company~~Borrowers. Upon any such resignation, the Required Lenders shall have the ~~right (in consultation with~~right, ~~and (unless an Event of Default has occurred and is continuing pursuant to Article VII)~~ with the ~~consent of,~~ approval of the ~~Company, which shall~~ Borrowers (not to be unreasonably withheld) , except that no such approval shall be required upon the occurrence and continuance of a Default), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the ~~Lenders~~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~~bank with such an office. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Company~~ Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Company~~ Borrowers and such successor. After an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~10.03~~ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document, any~~ related agreement or any document furnished hereunder or thereunder. ~~None~~ Each Lender acknowledges the potential conflict of interest of each other Lender as a result of Lenders holding disproportionate interests in the ~~institutions named as~~ Loans, and expressly consents to and waives any claim based upon such conflict of interest. The parties hereto agree that the titles Co-Syndication ~~Agent,~~ Agent and Co-Documentation Agent ~~or Joint Lead Arranger~~ are honorary and ~~Joint Bookrunner on~~ confer no duties upon such agents except as a Lender hereunder, provided that each Co-Syndication Agent and Co-Documentation Agent shall be entitled to the ~~cover page of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement~~rights and benefits specifically provided for herein.

Appears in 1 contract

Sources: Credit Agreement (Phillips Van Heusen Corp /De/)

Appears in 1 contract

Sources: Credit Agreement (Unisource Energy Corp)

Appears in 1 contract

Sources: Credit Agreement (Spartan Motors Inc)

Appears in 1 contract

Sources: Credit Agreement (Seagate Technology)

Appears in 1 contract

Sources: Credit Agreement (SPRINT Corp)

Appears in 1 contract

Sources: Credit Agreement (Allied Waste Industries Inc)

Appears in 1 contract

Sources: Credit Agreement (Ugi Corp /Pa/)

Appears in 1 contract

Sources: Credit Agreement (Leggett & Platt Inc)

Appears in 1 contract

Sources: Term Loan Credit Agreement (Brunswick Corp)

Appears in 1 contract

Sources: Credit Agreement (Amerisourcebergen Corp)

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 and Issuing Banks.~~ Each of the Lenders and ~~each~~ the Issuing ~~Bank~~ Banks hereby irrevocably appoints Owl Rock Capital Corporation to serve as Administrative Agent and Collateral Agent under the Loan Documents, and authorizes the Administrative Agent and Collateral Agent to execute, deliver and administer the Loan Documents and to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~Any bank~~ The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the ~~Company, any~~ Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or to exercise any discretionary ~~powers~~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 under the circumstances as provided in ~~Section 10.02~~the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the ~~Company~~Borrower, any ~~Borrower~~ other Subsidiary or any ~~Subsidiary~~ other Affiliate of any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~10.02~~9.02) or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful misconduct~~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 ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower, a ~~Borrower~~ Lender or ~~a Lender,~~ an Issuing Bank and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document~~Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the existence, value, sufficiency or collectability of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Administrative Agent shall not be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation or determination of (x) the Revolving Exposure or the component amounts thereof, (y) the Effective Yield or (z) the terms and conditions of any Intercreditor Agreement. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person), and may act upon any such statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall ~~not incur any liability for relying thereon~~have received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any~~ 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 itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs and the provisions of Section 10.03~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. ~~Subject~~ The Administrative Agent shall not be responsible for the negligence or misconduct of any subagents except to the ~~appointment~~ extent that a court of competent jurisdiction determines in a final and ~~acceptance of a successor~~ nonappealable judgment that the Administrative Agent ~~as provided~~ acted with gross negligence or willful misconduct in ~~this paragraph,~~ the selection of such sub-agents. The Administrative Agent may resign ~~at any time by notifying~~ upon 30 days’ notice to the Lenders, the Issuing Banks and the ~~Company~~Borrower. If the Administrative Agent becomes a Defaulting Lender or is an affiliate of a Defaulting Lender, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower or the Required Lenders, in each case, upon 30 days’ notice. Upon receipt of any such ~~resignation~~notice of resignation or upon such removal, the Required Lenders shall have the ~~right (in consultation with~~right, ~~and~~ with the Borrower’s consent (unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is ~~continuing pursuant to Article VII) with the consent of~~continuing), ~~the Company, which shall not be unreasonably withheld)~~ to appoint a successor, which shall be a commercial bank or trust company with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required ~~Lenders~~ ▇▇▇▇▇▇▇ and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent meeting the qualifications above (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender or is an Affiliate of a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in ~~consultation with, and (unless an Event of Default has occurred and is continuing pursuant~~ writing to ~~Article VII)~~such Person remove such Person as Administrative Agent and, with the consent of the ~~Company~~Borrower, ~~which~~ appoint a successor. If no such successor shall ~~not unreasonably withhold~~ have been so appointed by the Required Lenders and shall have accepted such ~~consent~~ appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and ~~which shall~~obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders or the retiring Administrative Agent ~~shall so request, designate and approve a successor Administrative Agent) on behalf of the 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~~as provided for above. Upon the acceptance of ~~its~~ a successor’s appointment as Administrative Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative ~~Agent~~Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the ~~Company~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Company~~ Borrower and such successor. After an the retiring or removed Administrative Agent’s resignation ~~hereunder~~or removal hereunder and under the other Loan Documents, the provisions of this Article and Section ~~10.03~~ 9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (i) while it the retiring or removed Administrative Agent was acting as Administrative ~~Agent~~Agent or (ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including (a) acting as Collateral Agent or otherwise holding any collateral security on behalf of any of the Lenders, (b) in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent and (c) in respect of the matters referred to under clause (1) above. Notwithstanding anything to the contrary herein, no Disqualified ▇▇▇▇▇▇ may be appointed as a successor Administrative Agent without the consent of the Borrower. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner, any Joint Lead Arranger or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner, any Joint Lead Arranger or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder. ~~None~~ Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption or Incremental Facility Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. Except with respect to the 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 ~~institutions named as Syndication~~ 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, ~~Documentation~~ 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 ~~Joint Lead Arranger~~ other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and ~~Joint Bookrunner on~~ of the ~~cover page~~ Guarantees of the Secured Obligations, to have agreed to the provisions of this Article, Section 9.15 and Section 9.17. In furtherance of the foregoing and not in limitation thereof, no Swap Agreement ~~shall,~~ or Cash Management Services the obligations under or in ~~their capacities as such, have any duties~~ respect of which constitute Secured Obligations will create (or ~~responsibilities~~ be deemed to create) in favor of any ~~kind~~ 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.~~any Loan Document. By accepting the

Appears in 1 contract

Sources: Credit Agreement (GoHealth, Inc.)

Appears in 1 contract

Sources: Revolving Credit Agreement (Nisource 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 and Issuing Banks.~~ Each of the Lenders and each Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its ~~behalf~~ behalf, including execution of subordination agreements in respect of Subordinated Indebtedness 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. ~~Any~~ The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with ~~the Company,~~ any ~~Borrower~~ Loan Party or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Company,~~ any ~~Borrower~~ Loan Party or any ~~Subsidiary~~ of its Subsidiaries that is communicated to or obtained by the bank serving as the Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.02) or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by a the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection ~~herewith~~with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of 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 any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs ~~and the provisions of Section 10.03~~ shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the ~~Company~~Borrower; provided, that such resignation shall not affect the rights of the Administrative Agent pursuant to the Parallel Debt and the Administrative Agent shall continue to hold such rights until the effective assignment thereof by the Administrative Agent to a successor agent. The Administrative Agent shall not be removed at any time or for any reason without its prior written consent. Upon any such resignation, the Required Lenders shall have the ~~right (~~right, in consultation ~~with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII)~~ with the ~~consent of~~Borrower, ~~the Company, which shall not be unreasonably withheld)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the ~~Lenders~~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 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. The fees payable by the ~~Company~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Company~~ Borrower and such successor. After an the Administrative Agent’s resignation hereunder, the provisions of this Article and Section ~~10.03~~ 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 the Administrative Agent. The Administrative Agent will reasonably cooperate in assigning its rights under the Parallel Debt to any such successor agent and will reasonably cooperate in transferring all rights under the Dutch Share Pledge to such successor agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement,~~ Agreement or any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder. ~~None of the institutions named~~ No Lender or Affiliate thereof identified in this Agreement as a Co-Syndication Agent, Co-Documentation Agent or Joint Lead Arranger 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 or Affiliates thereof shall have or be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders or Affiliates thereof their respective capacities as Co-Syndication Agent, Co-Documentation Agent or Joint Lead Arranger as it makes with respect to the Administrative Agent in the preceding paragraph. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against any Loan Party or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, with the consent of the Administrative Agent. The Lenders are not partners or co-venturers, and ~~Joint Bookrunner~~ no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the ~~cover page~~ Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this ~~Agreement shall~~Agreement. The Administrative Agent is a “representative” of the Holders of Secured Obligations within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Holder of Secured Obligations (other than the Administrative Agent) shall have the right individually to seek to realize upon the security granted by any Collateral Document, it being understood and agreed that such rights and remedies may be exercised solely by the Administrative Agent for the benefit of the Holders of Secured Obligations upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Holders of Secured Obligations any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Holders of Secured Obligations. The Holders of Secured Obligations confirm that any amount irrevocably received by the Administrative Agent in satisfaction of all or part of the Dutch Parallel Debt be deemed a satisfaction of a pro rata portion of the Corresponding Obligations. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) as described in Sections 5.10(a)(v), 6.02(l), 9.02(c) and 9.02(e); (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 transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document (including a permitted transfer to a Restricted Subsidiary other than a Loan Party), or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Holders of Secured Obligations herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent shall not be required to execute any such document on terms which, in ~~their capacities as such~~the Administrative Agent’s opinion, ~~have~~ would expose the Administrative Agent to liability or create any ~~duties~~ obligation or ~~responsibilities~~ 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 any ~~kind under this Agreement~~Loan Party or any Restricted Subsidiary in respect of) all interests retained by any Loan Party or any Restricted Subsidiary, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. The Borrower, on its behalf and on behalf of the Restricted Subsidiaries, and each Lender, on its behalf and on behalf of its affiliated Secured Parties, agrees that the Administrative Agent may determine, in its sole discretion, to not perfect a Lien in an asset of any Loan Party if the cost and expense associated with perfecting such Lien would be excessive in light of the value of such asset, or if such asset would not provide material credit support for the benefit of the Holders of Secured Obligations.

Appears in 1 contract

Sources: Credit Agreement (Quad/Graphics, Inc.)

Appears in 1 contract

Sources: Securities Purchase Agreement (TRM Corp)

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 and Issuing Banks.~~ (a) Each of the Lenders ~~and each Issuing Bank~~ ------------------------ hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms ~~of the Loan Documents~~hereof, together with such actions and powers as are reasonably incidental thereto~~. Any bank serving as~~ . (b) The Administrative Agent ~~hereunder~~ shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Company, any~~ Borrower or any ~~Subsidiary or other~~ Affiliate thereof as if it were not the Administrative Agent hereunder. . (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) except for acts of gross negligence or willful misconduct, the Administrative Agent shall not be subject to any fiduciary or other implied ~~duties~~duties or liabilities, regardless of whether a Default has occurred and is continuing, however the Administrative Agent shall carry out its obligations hereunder as if it were administering the Term Loan solely for its own account; (b) the Administrative Agent shall not have no any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated ~~by the Loan Documents~~ hereby that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.02), and (c) except as may be expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Company, any~~ Borrower ~~or any Subsidiary~~ that is communicated to or obtained by the ~~bank serving as~~ Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section ~~10.02~~9.02) or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by a the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any ~~Loan~~ other Transaction Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any ~~Loan~~ other Transaction Document, (iv) the validity, enforceability, effectiveness or genuineness of any ~~Loan~~ Transaction Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or ~~elsewhere in any Loan Document~~elsewhere, other than to confirm receipt of items expressly required hereunder to be delivered to the Administrative Agent. . (d) The Administrative Agent shall be entitled to rely ~~upon,~~ upon and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (e) The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itthe Administrative Agent and approved by the Borrower and the Required Lenders, which approval shall not be unreasonably withheld or delayed. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs ~~and the provisions of Section 10.03~~ shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. . (f) Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Banks~~ Lenders and the ~~Company~~Borrower. Upon any such resignation, the Required Lenders shall have the ~~right (~~right, in consultation ~~with~~with and approval by the Borrower, ~~and~~ which approval shall not be unreasonably withheld or delayed with respect to the appointment of a Lender as Administrative Agent if such Lender has a Commitment at such time which is either (~~unless~~ i) equal to or greater than $20,000,000 or (ii) equal to or greater than the amount of the Commitment held at such time by each other Lender, to appoint a successor Administrative Agent; provided that no approval -------- of the Borrower shall be required if an Event of Default has occurred and is ~~continuing pursuant to Article VII) with~~ continuing. If, in the ~~consent of~~case of a resignation by the Administrative Agent, ~~the Company, which shall not be unreasonably withheld) to appoint a successor. If~~ no successor shall have been so appointed by the Required Lenders and, if required, so approved by the Borrower, and no successor Administrative Agent shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New ~~York~~York and which would qualify as an Eligible Assignee, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Company~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Company~~ Borrower and such successor. After an the Administrative Agent’s 's resignation hereunder, the provisions of this Article and Section ~~10.03~~ 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. Except as set forth in subparagraph (e) of this Section 8.01, the Administrative Agent agrees that it shall not assign any of its rights or duties as Administrative Agent to any other Person, prior to an Event of Default. (g) Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document, any~~ related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agent, Documentation Agent or Joint Lead Arranger and Joint Bookrunner on the cover page of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.

Appears in 1 contract

Sources: Term Loan Agreement (Boston Properties Inc)

Appears in 1 contract

Sources: Credit Agreement (Amerisourcebergen Corp)

Appears in 1 contract

Sources: Credit Agreement (Tyson Foods Inc)

Appears in 1 contract

Sources: Credit Agreement (Heartland Payment Systems Inc)

Appears in 1 contract

Sources: Credit Agreement (E TRADE FINANCIAL Corp)

The Administrative Agent. May File Proofs of Claim; Credit Bidding. In ~~order to expedite the transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent on behalf~~ case of the ~~Lenders and Issuing Banks. Each~~ pendency of ~~the Lenders and each Issuing Bank hereby irrevocably authorizes~~ any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, 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. Any bank serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company, any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (~~a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless~~ irrespective of whether ~~a Default has occurred~~ the principal of any Term Loan shall then be due and ~~is continuing, (b)~~ payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have ~~no duty~~ made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise: (a) to ~~take~~ file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Term Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Term Loan Lenders and the Administrative Agent (including any ~~discretionary action~~ claim for the reasonable compensation, expenses, disbursements and advances of the Term Loan Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Term Loan Lenders and the Administrative Agent under Sections 2.09 and 11.04) allowed in such judicial proceeding; and (b) to collect and receive any monies or ~~exercise~~ other property payable or deliverable on any ~~discretionary powers~~such claims and to distribute the same; and any custodian, ~~except discretionary rights and powers expressly contemplated~~ receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Term Loan Lender to make such payments to the ~~Loan Documents~~ Administrative Agent and, in the event that the Administrative Agent ~~is required~~ shall consent to ~~exercise in writing by~~ the ~~Required Lenders (or~~ making of such ~~other number or percentage of~~ payments directly to the ~~Lenders as shall be necessary under the circumstances as provided in Section 10.02)~~Term Loan Lenders, ~~and (c) except as expressly set forth in the Loan Documents,~~ to pay to the Administrative Agent ~~shall have no duty to disclose~~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 Sections 2.09 and 10.04. Nothing contained herein shall ~~not~~ be ~~liable for~~ deemed to authorize the ~~failure~~ Administrative Agent to ~~disclose~~authorize or consent to or accept or adopt on behalf of any Term Loan Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any ~~information relating~~ Term Loan Lender to authorize the ~~Company~~Administrative Agent to vote in respect of the claim of any Term Loan Lender in any such proceeding. The Loan Parties and the Secured Parties hereby irrevocably authorize the Administrative Agent, ~~any Borrower~~ based upon the instruction of the Required Lenders, to (a) credit bid and in such manner purchase (either directly or through one or more acquisition vehicles) all or any ~~Subsidiary that is communicated to or obtained by~~ portion of the ~~bank serving as Administrative Agent~~ Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Section 363 of the Bankruptcy Code of the United States or any ~~of its Affiliates~~ similar Laws in any ~~capacity. The Administrative Agent shall not be liable for~~ other jurisdictions to which a Loan Party is subject, or (b) credit bid and in such manner purchase (either directly or through one or more acquisition vehicles) all or any ~~action taken~~ portion of the Collateral at any other sale or ~~not taken~~ foreclosure conducted by it (or with the consent or at the ~~request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02~~direction of) or in the absence of its own bad faith, gross negligence or wilful misconduct. The Administrative Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent (whether by ~~a Borrower~~ judicial action or ~~a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i~~otherwise) ~~any statement, warranty or representation made~~ in ~~or in~~ accordance with applicable Law. In connection with any ~~Loan Document~~such credit bid and purchase, ~~(ii)~~ the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered Obligations owed to the ~~Administrative Agent. The Administrative Agent~~ Secured Parties shall be entitled to ~~rely upon~~be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not ~~incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by~~ unduly delay the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for 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 and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties ability of the Administrative Agent to credit bid and ~~any~~ purchase at such ~~sub-agent, and shall apply to their respective activities in connection with the syndication~~ sale or other disposition of the ~~credit facilities provided for herein as well as activities as Administrative Agent. Subject to~~ Collateral and, if such claims cannot be estimated without unduly delaying the ~~appointment and acceptance~~ ability of ~~a successor Administrative Agent as provided in this paragraph,~~ the Administrative Agent ~~may resign at~~ to credit bid, then such claims shall be disregarded, not credit bid, and not entitled to any ~~time~~ interest in the asset or assets purchased by ~~notifying the Lenders, the Issuing Banks~~ means of such credit bid) and the ~~Company~~Secured Parties whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the asset or assets so purchased (or in the Equity Interests of the acquisition vehicle or vehicles that are used to consummate such purchase). Upon any such resignation, the Required Lenders shall have the right (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII) with the consent of, the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed request by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the 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 the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or the Borrower Agent at any ~~other Lender and based on such documents and information as it has deemed appropriate~~time, ~~made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon~~ the Secured Parties will confirm in writing the Administrative ~~Agent~~ Agent’s authority to release any such Liens on particular types or ~~any other Lender and based on such documents and information as it shall from time~~ items of Collateral pursuant to ~~time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon~~ this Agreement, any other Loan Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agent, Documentation Agent or Joint Lead Arranger and Joint Bookrunner on the cover page of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this AgreementSection 10.09.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Purple Innovation, 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 and Issuing Banks.~~ Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and ~~each Issuing Bank hereby~~ irrevocably authorizes the Administrative Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Loan Party and (ii) take such actions on its behalf and to exercise such rights, powers and remedies and perform the duties as are delegated to the Administrative Agent by the terms ~~of the~~ under such Loan Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the generality of the immediately preceding paragraph, the Administrative Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any other bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with any Loan Document to any Lender is hereby authorized to make such payment to the Administrative Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of the Administrative Agent and Lenders with respect to any Borrower Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Lender), (iii) except as may be otherwise specified in any Loan Document, exercise all remedies given to the Administrative Agent and the other Lenders with respect to the Loan Parties, whether under the Loan Documents, applicable law or otherwise and (iv) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver. The Administrative Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender). Any ~~bank~~ such Person shall benefit from this Article IX to the extent provided by the Administrative Agent. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the ~~Company, any~~ Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth ~~in the Loan Documents~~herein. Without limiting the generality of the foregoing, (a) the Administrative Agent is acting solely on behalf of the Lenders, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Administrative Agent”, the terms “agent” and similar terms in any Loan Document to refer to the Administrative Agent, which terms are used for title purposes only, (b) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (bc) the Administrative Agent shall not have no any duty to take any discretionary action or exercise any discretionary 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 by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (cd) except as expressly set forth ~~in the Loan Documents~~herein, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Company, any~~ Borrower or any ~~Subsidiary~~ of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by a the Borrower or a ~~Lender~~Lender clearly stating that it is a “notice of default”, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with ~~any Loan Document~~this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth ~~in any Loan Document~~herein, (iv) the validity, enforceability, effectiveness or genuineness of ~~any Loan Document~~ this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in ~~Article IV~~ Section 4.01 or elsewhere ~~in any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any~~ 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 is hereby authorized by each Loan Party and each Lender to establish procedures (and to amend such procedures from time to time) to facilitate the administration and servicing of the Loans and other matters incidental thereto and may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding ~~paragraphs and the provisions of Section 10.03~~ clauses shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this ~~paragraph~~clause, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Banks~~ Lenders and the ~~Company~~Borrower. The Required Lenders may by notice to the Borrower remove the Administrative Agent. Upon any such ~~resignation~~resignation or removal, the Required Lenders shall have the ~~right (~~right, in consultation ~~with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII)~~ with the ~~consent of~~Borrower, ~~the Company, which shall not be unreasonably withheld)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its ~~resignation~~resignation or after such notice of removal, then the retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the 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~~Agent. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the ~~Company~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Company~~ Borrower and such successor. After an the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and 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 or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender ~~also acknowledges that it will~~shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the MLP, the Borrower and their respective Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any ~~other Loan Document, any~~ related agreement or any document furnished hereunder or ~~thereunder~~thereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder. ~~None~~ Each Lender, by accepting the benefits of the ~~institutions named as Syndication Agent~~Loan Documents, ~~Documentation~~ agrees that (i) any action taken by Administrative Agent or ~~Joint Lead Arranger~~ Required Lenders (or, if expressly required in any Loan Document, a greater proportion of the Lenders) in accordance with the provisions of the Loan Documents, (ii) any action taken by the Administrative Agent in reliance upon the instructions of Required Lenders (or, where so required, such greater proportion) and ~~Joint Bookrunner~~ (iii) the exercise by the Administrative Agent or 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 Lenders. Each Lender agrees to reimburse the Administrative Agent and each of its sub-agents (to the extent not timely reimbursed by any Loan Party) promptly upon demand for its pro rata share of any out-of-pocket costs and expenses (including, without limitation, fees, charges and disbursements of financial, legal and other advisors and any taxes or insurance paid in the name of, or on behalf of, any Loan Party) incurred by the ~~cover page~~ Administrative Agent or any of ~~this Agreement shall~~its sub-agents in connection with the preparation, syndication, execution, delivery, administration, modification, amendment, consent, waiver or enforcement of, or the taking of any other action (whether through negotiations, through any work-out, bankruptcy, restructuring or other legal or other proceeding (including, without limitation, preparation for and/or response to any subpoena or request for document production relating thereto) or otherwise) in ~~their capacities as such~~respect of, ~~have any duties~~ or legal advice with respect to, its rights or responsibilities under, any Loan Document. Each Lender further agrees to indemnify and hold harmless the Administrative Agent and each of its sub-agents (to the extent not timely reimbursed by any Loan Party), ratably according to its pro rata share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including, to the extent not indemnified by the applicable Lender, taxes, interests and penalties imposed for not properly withholding or backup withholding on payments made to or for the account of any Lender) that may be imposed on, incurred by, or asserted against the Administrative Agent or any of its sub-agents in any matter relating to or arising out of, in connection with or as a result of any Loan Document or any other act, event or transaction related, contemplated in or attendant to any such document, or, in each case, any action taken or omitted to be taken by the Administrative Agent or any of its sub-agents under ~~this Agreement~~or with respect to the foregoing.

Appears in 1 contract

Sources: Term Loan Credit Agreement (NuStar Energy L.P.)

Appears in 1 contract

Sources: Credit Agreement (Nationwide Health Properties Inc)

Appears in 1 contract

Sources: Credit Agreement (Maxxim Medical Inc/Tx)

Appears in 1 contract

Sources: Credit Agreement (Coolbrands International Inc)

Appears in 1 contract

Sources: Credit Agreement (Cambrex Corp)

Appears in 1 contract

Sources: Credit Agreement (Amerisourcebergen Corp)

Appears in 1 contract

Sources: Credit Agreement (Ugi Corp /Pa/)

Appears in 1 contract

Sources: Credit Agreement (Leggett & Platt Inc)

Appears in 1 contract

Sources: Credit Agreement (Nationwide Health Properties Inc)

Appears in 1 contract

Sources: Credit Agreement (Leggett & Platt Inc)

Appears in 1 contract

Sources: Credit Agreement (Amerisourcebergen Corp)

Appears in 1 contract

Sources: Credit Agreement (Argo Tech Corp)

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 and Issuing Banks.~~ (a) Each of the Lenders and ~~each~~ the Issuing ~~Bank~~ Banks hereby irrevocably appoints Citizens Bank, N.A., to serve as Administrative Agent and Collateral Agent under the Loan Documents, and authorizes the Administrative Agent and Collateral Agent to execute, deliver and administer the Loan Documents and to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~Any bank~~ The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. (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 ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with ~~the Company, any Borrower~~ Holdings or any other Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder.~~ hereunder and without any duty to account therefor to the Lenders or the Issuing Banks. (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or to exercise any discretionary ~~powers~~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 under the circumstances as provided in ~~Section 10.02~~the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to ~~the Company~~Holdings, any ~~Borrower~~ Subsidiary or any ~~Subsidiary~~ other Affiliate of any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~10.02~~9.02) or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful misconduct~~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 ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower, a ~~Borrower~~ Lender or ~~a Lender,~~ an Issuing Bank and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document~~Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the existence, value, sufficiency or collectability of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Administrative Agent shall not be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation or determination of (x) the Revolving Exposure or the component amounts thereof, (y) the Effective Yield or (z) the terms and conditions of any Intercreditor Agreement. (d) The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person), and may act upon any such statement prior to receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall ~~not incur any liability for relying thereon~~have received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for ~~any~~ 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 itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any of and all ~~its~~ their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs and the provisions of Section 10.03~~ 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 subagents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. (f) Each Lender acknowledges that Eligible Assignees hereunder may be Affiliated Lenders with respect to Term Loans and that Affiliated Lenders may purchase (including pursuant to privately negotiated open-market transactions with one or more Lenders that are not made available for participation to all Lenders or all Lenders of a particular Class) Term Loans hereunder from Lenders from time to time, subject to the limitations set forth herein. Each Lender agrees that the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into whether as to whether any Affiliated Lender intends to acquire or has acquired any Term Loan or as to whether any Lender is at any time an Affiliated Lender and that, unless the Administrative Agent shall have received, pursuant to the covenants of such Lender set forth herein or in the Assignment and Assumption pursuant to which such Lender shall have acquired any Term Loan hereunder, prior written notice from any Lender that such Lender is an Affiliated Lender, the Administrative Agent may deal with such Lender (including for purposes of determining the consent, approval, vote or other similar action of the Lenders or the Lenders of any Class), and shall not incur any liability for so doing, as if such Lender were not an Affiliated Lender. (g) Subject to the appointment and acceptance of a successor Administrative Agent as provided in this ~~paragraph~~Article VIII, the Administrative Agent may resign ~~at any time by notifying~~ upon 10 days’ notice to the Lenders, the Issuing Banks and the ~~Company~~Borrower. If the Administrative Agent becomes a Defaulting Lender or is an affiliate of a Defaulting Lender, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of the Borrower or the Required Lenders, in each case, upon 10 days’ notice. Upon receipt of any such ~~resignation~~notice of resignation or upon such removal, the Required Lenders shall have the ~~right (in consultation with~~right, ~~and~~ with the Borrower’s consent (unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is ~~continuing pursuant to Article VII) with the consent of~~continuing), ~~the Company, which shall not be unreasonably withheld)~~ to appoint a successor, which shall be a commercial bank or trust company with an office in the United States, or an Affiliate of any such bank with an office in the United States and shall be a “U.S. person” and a “financial institution” within the meaning of Treasury Regulations Section 1.1441-1. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent meeting the qualifications above (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). (h) If the Person serving as Administrative Agent is a Defaulting Lender or is an Affiliate of a Defaulting Lender, the Required Lenders and the Borrower may, to the extent permitted by applicable law, by notice in ~~consultation with, and (unless an Event of Default has occurred and is continuing pursuant~~ writing to ~~Article VII)~~such Person as provided above remove such Person as Administrative Agent and, with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the LendersBorrower, appoint a successor, which successor ~~Administrative Agent which~~ shall be a commercial bank or trust company 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, and shall be a “U.S. person” and a “financial institution” within the meaning of Treasury Regulations Section 1.1441-1. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. (i) With effect from the Resignation Effective Date or the Removal Effective Date, as applicable, (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders or the retiring Administrative Agent appoint a successor Administrative Agent as provided for above. Upon the acceptance of ~~its~~ a successor’s appointment as Administrative Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative ~~Agent~~Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the ~~Company~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Company~~ Borrower and such successor. After an the retiring or removed Administrative Agent’s resignation ~~hereunder~~or removal hereunder and under the other Loan Documents, the provisions of this Article and Section ~~10.03~~ 9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it the retiring or removed Administrative Agent was acting as Administrative ~~Agent~~Agent and in respect of the matters referred to under clause (1) above. Notwithstanding anything to the contrary herein, no Disqualified Lender may be appointed as a successor Administrative Agent without the consent of the Borrower. (j) Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, any Joint Bookrunner or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder~~. None~~ . (k) Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment or Refinancing Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. (l) 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 ~~institutions named as Syndication Agent~~Collateral or to enforce any Guarantee of the Secured Obligations, ~~Documentation~~ 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 ~~Joint Lead Arranger and Joint Bookrunner on the cover page of this Agreement shall, in their capacities as such, have any duties~~ private sale or ~~responsibilities of any kind under this Agreement.~~

Appears in 1 contract

Sources: Credit Agreement (Skyline Champion Corp)

Appears in 1 contract

Sources: Credit Agreement (Cars.com 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 and Issuing Banks.~~ (a) Each of the Lenders and ~~each~~ the Issuing ~~Bank~~ Banks hereby irrevocably appoints Bank of America as its agent 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. ~~Any bank~~ The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Bank, and the Borrower shall not have rights as a third party beneficiary of any of such provisions. (b) The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and ~~such bank~~ 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 to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the ~~Company, any~~ Borrower or any Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder.~~ hereunder and without any duty to account therefor to the Lenders. (c) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative 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 no any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary under~~ expressly provided for herein or by the ~~circumstances as provided in Section 10.02~~other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the ~~Company, any~~ Borrower or any ~~Subsidiary~~ of its Subsidiaries that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided ~~in Section 10.02~~herein) or in the absence of its own bad faith, gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice describing such Default thereof is given to the Administrative Agent by the Borrower, a ~~Borrower~~ Lender or ~~a Lender~~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~~herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in herein or therein or the occurrence of any ~~Loan Document~~Default, (iv) the 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 any Loan Document~~herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. . (d) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or the Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or 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 ~~any~~ the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. . (e) The Administrative Agent may perform any and all 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 itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs and the provisions of Section 10.03~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent~~. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the~~ . (f) The Administrative Agent may ~~resign~~ at any time ~~by notifying~~ give notice of its resignation to the Lenders, the Issuing ~~Banks~~ Bank and the ~~Company~~Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the ~~right (~~right, in consultation ~~with,~~ with the Borrower and (unless an Event of Default ~~has~~ under clause (a), (b), (h) or (i) of Article VII shall have occurred and ~~is continuing pursuant to Article VII~~be continuing) with the consent ~~of,~~ of the ~~Company,~~ Borrower (which consent of the Borrower shall not be unreasonably ~~withheld)~~ 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 resignation, then the retiring Administrative Agent may (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint a successor Administrative Agent ~~which~~ meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents 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 ~~bank with an office~~ successor Administrative Agent as provided for above in ~~New York, New York, or an Affiliate of any such bank~~this Section. Upon the acceptance of ~~its~~ a successor’s appointment as Administrative Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations ~~hereunder~~hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the ~~Company~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Company~~ Borrower and such successor. After an the retiring Administrative Agent’s resignation ~~hereunder~~hereunder and under the other Loan Documents, the provisions of this Article and Section ~~10.03~~ 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 Swingline Lender. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (a) 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 the Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder. (h) To the extent required by any applicable Laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. ~~None~~ Without limiting or expanding the provisions of Section 2.16, each Lender shall indemnify and hold harmless the Administrative Agent against, and shall make payable in respect thereof within 30 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the Internal Revenue Service or any other Governmental Authority as a result of the ~~institutions named~~ 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). A certificate as ~~Syndication~~ to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this clause (h). The agreements in this clause (h) shall survive the resignation and/or replacement of the Administrative Agent, ~~Documentation Agent~~ any assignment of rights by, or ~~Joint Lead Arranger~~ the replacement of, a Lender, the termination of the Commitments and ~~Joint Bookrunner on~~ the ~~cover page~~ repayment, satisfaction or discharge of all other Obligations. For the avoidance of doubt, a “Lender” shall, for purposes of this ~~Agreement shall~~clause (h), ~~in their capacities as such, have~~ include any ~~duties or responsibilities of~~ Swingline Lender and any ~~kind under this Agreement~~Issuing Bank.

Appears in 1 contract

Sources: Credit Agreement (Mylan Inc.)

The Administrative Agent. ~~In order~~ (a) Each Class A Purchaser hereby irrevocably designates and appoints MGT as its agent to ~~expedite~~ act as the ~~transactions contemplated by~~ Administrative Agent as specified herein, and each Class A Purchaser hereby irrevocably authorizes MGT as Administrative Agent, to take such action on behalf of such Class A Purchaser under the provisions of this Agreement, ~~JPMCB is hereby appointed~~ the Pooling and Servicing Agreement, the Supplement and the other documents executed in connection therewith (collectively, the "Related Documents") and to ~~act as Administrative Agent on behalf of the Lenders and Issuing Banks. Each of the Lenders and each Issuing Bank hereby irrevocably authorizes the Administrative Agent to take~~ give such ~~actions on its behalf~~ consents, approvals or directions and to exercise such other powers and perform such duties as are expressly delegated to the Administrative Agent and Class A Certificateholder by the terms of this Agreement and the ~~Loan~~ other Related Documents, together with such ~~actions and~~ other powers as are reasonably incidental thereto. ~~Any bank serving as~~ The Administrative Agent ~~hereunder shall have~~ agrees to act as such upon the ~~same rights and powers~~ express conditions contained in ~~its capacity as a Lender as~~ this Agreement. Notwithstanding any provision to the contrary elsewhere in this Agreement or any other ~~Lender and may exercise~~ Related Document, the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company, any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or ~~obligations~~ responsibilities (except those expressly set forth herein or in the ~~Loan~~ other Related Documents) or any fiduciary relationship with any Class A Purchaser, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Related Document or otherwise exist against the Administrative Agent. ~~Without limiting~~ The provisions of this Section 7.21 are solely for the ~~generality~~ benefit of ~~the foregoing, (a)~~ the Administrative Agent ~~shall not be subject to~~ and the Class A Purchasers, and none of Funding, Pier 1, the Transferor, the Servicer, any ~~fiduciary~~ Certificateholder, the Trust or ~~other implied duties, regardless~~ the Trustee or any of ~~whether a Default has occurred and is continuing, (b) the Administrative Agent~~ their respective Affiliates shall have ~~no duty to take~~ any ~~discretionary action or exercise~~ rights as a third party beneficiary of any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the ~~Lenders as shall be necessary~~ provisions hereof. In performing its functions and duties under ~~the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan Documents~~this Agreement, the Administrative Agent shall ~~have no duty to disclose,~~ act solely as agent of the Class A Purchasers and does not assume and shall not be ~~liable for~~ deemed to have assumed any obligation or relationship of agency or trust with Funding, Pier 1, the ~~failure to disclose~~Transferor, the Servicer, any ~~information relating to~~ Certificateholder, the ~~Company, any Borrower~~ Trust or ~~any Subsidiary that is communicated to or obtained by~~ the ~~bank serving as Administrative Agent~~ Trustee or any of their respective Affiliates. (b) The Administrative Agent may execute any of its ~~Affiliates in~~ duties under this Agreement or any ~~capacity~~other Related Document by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. (c) Neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or ~~not~~ omitted to be taken by it or such person under or in connection with this Agreement or the ~~consent~~ other Related Documents (except in the case of the Administrative Agent for its own gross negligence or at willful misconduct) or (ii) responsible in any manner to any Class A Purchaser for any recitals, statements, representations or warranties made by any of Funding, Pier 1, the Transferor, the Servicer, the Trustee or the Trust or any of their respective officers contained in this Agreement or any of the Related Documents, any other document or in any certificate, report, prospectus, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other document or for any failure of Funding, Pier 1, the Transferor, the Servicer, the Trustee or the Trust or any of their respective Affiliates or any of their respective officers to perform its obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Class A Purchaser to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or the other Related Documents, or to inspect the properties, books or records of Funding, Pier 1, the Transferor, the Servicer, the Trustee or the Trust. The Administrative Agent shall not be responsible to any Class A Purchaser for the effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of this Agreement or any other Related Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents in connection herewith or therewith furnished or made by the Administrative Agent to any Class A Purchaser or by or on behalf of Funding, Pier 1, the Transferor, the Servicer, the Trustee or the Trust to the Administrative Agent or any Class A Purchaser or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein. (d) The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper person or persons and upon advice and statements of legal counsel (including counsel to Funding, Pier 1, the Transferor, the Servicer, the Trustee or the Trust), independent accountants and other experts selected by the Administrative Agent, Funding, Pier 1, the Transferor, the Servicer, the Trustee or the Trust. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Related Document, unless it shall first receive such advice or concurrence of such of the Class A Purchasers as it deems appropriate or it shall first be indemnified to its satisfaction by the Class A Purchasers against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Related Documents in accordance with a request of the ~~Required Lenders (~~Majority Investors, and such request and any action taken or ~~such other number or percentage of the Lenders as~~ failure to act pursuant thereto shall be ~~necessary under the circumstances as provided in Section 10.02~~binding upon all Class A Purchasers. (e) ~~or in the absence of its own bad faith, gross negligence or wilful misconduct.~~ The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Trust Pay Out Event, Series 2001-1 Pay Out Event or Servicer Default or comparable event (however named), unless the Administrative Agent has received notice from a Class A Purchaser, Funding, Pier 1, the Transferor, the Servicer, the Trustee or the Trust referring to this Agreement, describing such event and ~~until written~~ stating that such notice is furnished pursuant to subsection 7.21(e) of this Agreement. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof ~~is given~~ to each Class A Purchaser. (f) Each Class A Purchaser expressly acknowledges that neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates have made any representations or warranties to it and that no act by the Administrative Agent hereinafter taken, including any review of the affairs of any of Funding, Pier 1, the Transferor, the Servicer, the Trust or the Trustee shall be deemed to constitute any representation or warranty by the Administrative Agent to any Class A Purchaser. Each Class A Purchaser represents to the Administrative Agent by a Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for 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 and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII) with the consent of, the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the 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 the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other ~~Lender~~ Class A Purchaser, and based on such documents and information as it has deemed appropriate, made its own ~~credit analysis~~ appraisal of and investigation into the Receivables and the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of each of Funding, Pier 1, the Transferor, the Servicer, the Trust or the Trustee and made its own decision to enter into this Agreement and its Assignment Agreement. Each ~~Lender~~ Class A Purchaser also ~~acknowledges~~ represents that it will, independently and without reliance upon the Administrative Agent or any other ~~Lender~~ Class A Purchaser and based on such documents and information as it shall ~~from time to time~~ deem ~~appropriate~~appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under ~~or based upon~~ this Agreement, and to make such investigation as it deems necessary to inform itself as to the Receivables and the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of each of Funding, Pier 1, the Transferor, the Servicer, the Trust or the Trustee. The Administrative Agent shall not have any duty or responsibility to provide any Class A Purchaser with any credit or other ~~Loan Document~~information concerning the Receivables and the business, operations, assets, property, financial and other conditions, prospects or creditworthiness of any ~~related agreement~~ of Funding, Pier 1, the Transferor, the Servicer, the Trust or the Trustee which may come into the possession of the Administrative Agent or any ~~document furnished hereunder~~ of its officers, directors, employees, agents, attorneys-in-fact or ~~thereunder. None~~ affiliates. (g) The Committed Investors agree (which agreement shall survive the termination of this Agreement) to indemnify the ~~institutions named~~ Administrative Agent ratably according to their respective Commitments) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, reasonable expenses (including reasonable fees and expenses of legal counsel and other experts) or disbursements of any kind whatsoever which may at any time (including at any time following the termination of this Agreement) be imposed on, incurred by or asserted against the Administrative Agent in its capacity as ~~Syndication Agent, Documentation Agent~~ such (or ~~Joint Lead Arranger and Joint Bookrunner on the cover page~~ as Class A Certificateholder) in any way relating to or arising out of this Agreement or any other Related Document, or any documents contemplated by or referred to herein or the transactions contemplated hereby or any action taken or omitted to be taken by the Administrative Agent under or in connection with any of the foregoing, but only to the extent that any of the foregoing is not paid by Funding, Pier 1, the Transferor, the Servicer, the Trust or the Trustee; provided that no Class A Purchaser shall be liable to the Administrative Agent for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the Agent's gross negligence or willful misconduct. If any indemnity furnished to the Administrative Agent for any purpose shall, in ~~their~~ the opinion of the Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. The agreements in this paragraph shall survive the termination of this Agreement. (h) The Administrative Agent and its affiliates may make loans to, accept deposits from and generally engage in any kind of business with Funding, Pier 1, the Transferor, the Servicer, the Trust or the Trustee as though the Administrative Agent were not the Administrative Agent hereunder. Each Class A Purchaser acknowledges that MGT acts (i) as administrator and agent for DFC and in such capacity acts and may continue to act on behalf of DFC in connection with DFC's business, (ii) as the agent for the Support Parties under the liquidity and credit enhancement agreements relating to this Agreement to which DFC is party and in various other capacities relating to the business of DFC under various agreements and (iii) as ~~such~~agent under the Loan Agreement. MGT in its capacity as the Administrative Agent shall not, by virtue of its acting in any such other capacities be deemed to have ~~any~~ duties or responsibilities hereunder or be held to a standard of ~~any kind under~~ care in connection with the performance of its duties as the Administrative Agent other than as expressly provided in this Agreement. MGT may act as the Administrative Agent without regard to and without additional duties or liabilities arising from its role as such administrator or agent or arising from its acting in any such other capacity. (i) All amounts received by the Administrative Agent for account of the Class A Purchasers shall be distributed by the Administrative Agent in like funds as received as follows: if such amounts were received (i) in respect of Class A Monthly Interest and Fees or other interest in respect of amounts owing to Class A Purchasers, to each Class A Purchaser ratably on the basis of the amount of all such Class A Monthly Interest and Fees or other interest owing to each such Class A Purchaser; (ii) in repayment of the Class A Investor Principal Balance, to each Class A Purchaser ratably on the basis of the unpaid principal amount of the Class A Investor Principal Balance owing to each such Class A Purchaser, except as otherwise provided in subsection 2.02(a); and (iii) in respect of other amounts payable to Class A Purchasers hereunder, to each Class A Purchaser which shall have notified the Administrative Agent in writing of such an amount owed to it hereunder ratably on the basis of such amounts owed to all notifying Class A Purchasers, or in each case in such other portions as each Class A Purchaser shall have agreed upon in an Assignment Agreement.

Appears in 1 contract

Sources: Certificate Purchase Agreement (Pier 1 Imports Inc/De)

Appears in 1 contract

Sources: Credit Agreement (Tyson Foods Inc)

Appears in 1 contract

Sources: Credit Agreement (Burger King Holdings 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 and Issuing Banks.~~ Each of the Lenders and ~~each~~ the Issuing ~~Bank~~ Banks hereby irrevocably appoints Truist Bank, as successor by merger to SunTrust Bank, to serve as Administrative Agent and Collateral Agent under the Loan Documents, and authorizes the Administrative Agent and Collateral Agent to take such actions ~~on its behalf~~ and to exercise such powers as are delegated to the Administrative Agent and Collateral Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. ~~Any bank~~ The provisions of this Article are solely for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks, and none of Holdings, the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such ~~bank~~ Person and its Affiliates may accept deposits from, lend money to to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the ~~Company, any~~ Borrower or any other Subsidiary or other Affiliate thereof as if it such Person were not the Administrative Agent ~~hereunder~~hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have no any duty to take any discretionary action or to exercise any discretionary ~~powers~~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 under the circumstances as provided in ~~Section 10.02~~the Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have no any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the ~~Company~~Borrower, any ~~Borrower~~ other Subsidiary or any ~~Subsidiary~~ other Affiliate of any of the foregoing that is communicated to or obtained by the ~~bank~~ Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be ~~necessary~~ necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in Section ~~10.02~~9.02) or in the absence of its own ~~bad faith,~~ gross negligence or ~~wilful~~ willful misconduct. The Administrative Agent shall ~~not~~ be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Holdings, the Borrower, a ~~Borrower~~ Lender or ~~a Lender,~~ an Issuing Bank and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered ~~hereunder~~ thereunder or in connection ~~herewith~~therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan ~~Document~~Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or creation, perfection or priority of any Lien purported to be created by the Security Documents or (vvi) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any confirmation of the Revolving Exposure or the component amounts thereof. Neither the Administrative Agent nor any of its Affiliates and its and their respective partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives shall be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not ‎(i) be obligated to ascertain, monitor or inquire as to whether any Lender or prospective Lender is a Disqualified Lender‎ or (ii) have any liability with respect to or arising out of any assignment of Loans, or disclosure of confidential information, to any Disqualified‎ Lender. The Administrative Agent shall be entitled to ~~rely upon~~rely, and shall not incur any liability for ~~relying upon~~relying, upon any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been ~~signed~~ signed, sent or ~~sent~~ otherwise authenticated by the proper Person (including, if applicable, a Responsible Officer or Financial Officer of such Person). The Administrative Agent also may ~~rely~~ rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (including, if applicable, a Financial Officer or a Responsible Officer of such Person~~, and shall not incur any liability for relying thereon~~). The Administrative Agent may consult with legal counsel (who may be counsel for ~~any~~ or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by itthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all ~~its~~ of their duties and exercise ~~its~~ their rights and powers through their respective Related Parties. The exculpatory provisions of ~~the preceding paragraphs and the provisions of Section 10.03~~ this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign ~~at any time by notifying~~ upon 30 days’ notice to the Lenders, the Issuing Banks and Holdings. If the ~~Company~~Administrative Agent becomes a Defaulting Lender and is not performing its role hereunder as Administrative Agent, the Administrative Agent may be removed as the Administrative Agent hereunder at the request of Holdings and the Required Lenders. Upon receipt of any such ~~resignation~~notice of resignation or upon such removal, the Required Lenders shall have the ~~right (in consultation with~~right, ~~and~~ with Holdings’ consent (unless an Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is ~~continuing pursuant to Article VII) with the consent of~~continuing), ~~the Company, which shall not be unreasonably withheld)~~ to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (~~in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which~~ but shall not ~~unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent~~be obligated to) on behalf of the ~~Lenders~~Lenders and the Issuing Banks, appoint a successor Administrative ~~Agent~~ Agent, which shall be ~~a bank~~ an Approved Bank with an office in New York, New York, or an Affiliate of any such ~~bank~~Approved Bank (the date upon which the retiring Administrative Agent is replaced, the “Resignation Effective Date”). If the Person serving as Administrative Agent is a Defaulting Lender, the Required Lenders and Holdings may, to the extent permitted by applicable law, by notice in writing to such Person remove such Person as Administrative Agent and, with the consent of Holdings, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except (i) that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed and (ii) with respect to any outstanding payment obligations) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of ~~its~~ a successor’s appointment as Administrative Agent ~~hereunder by a successor~~hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative ~~Agent~~Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations ~~hereunder~~hereunder and under the other Loan Documents as set forth in this Section. The fees payable by the ~~Company~~ Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the ~~Company~~ Borrower and such successor. After an the retiring or removed Administrative Agent’s resignation ~~hereunder~~or removal hereunder and under the other Loan Documents, the provisions of this Article and Section ~~10.03~~ 9.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it the retiring or removed Administrative Agent was acting as Administrative Agent. Each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Joint Bookrunners or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Joint Bookrunners or any other Lender or any Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan ~~Document,~~ Document or any related agreement or any document furnished hereunder or thereunder. ~~None~~ Each Lender, by delivering its signature page to this Agreement and funding its Loans on the Effective Date, or delivering its signature page to an Assignment and Assumption, Incremental Facility Amendment or Refinancing Amendment pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. No Lender shall have any right individually to realize upon any of the ~~institutions named as Syndication~~ Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Lenders in accordance with the terms thereof. In the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Administrative Agent, ~~Documentation~~ as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Lenders at such sale or ~~Joint Lead Arranger~~ other disposition. Each Lender, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations, to have agreed to the foregoing provisions. Notwithstanding anything herein to the contrary, neither a Joint Bookrunner nor any Person named on the cover page of this Agreement ~~shall, in their capacities~~ as ~~such,~~ a Joint Lead Arranger shall have any duties or ~~responsibilities~~ obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder, including under Section 9.03, fully as if named as an indemnitee or indemnified person therein and irrespective of whether the indemnified losses, claims, damages, liabilities and/or related expenses arise out of, in connection with or as a result of matters arising prior to, on or after the effective date of any ~~kind~~ Loan Document. To the extent required by any applicable Requirements of Law (as determined in good faith by the Administrative Agent), the Administrative Agent may withhold from any payment to any Lender under ~~this Agreement.~~any Loan Document an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.17, each Lender shall indemnify the Administrative Agent against, and shall make payable in respect thereof within 30 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the U.S. Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts paid to or for the account of such Lender for any reason (including because the appropriate form was not delivered or not property executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective)

Appears in 1 contract

Sources: Credit Agreement (European Wax Center, Inc.)

The Administrative Agent. ~~In order~~ each Issuing Lender and the Lenders agrees to ~~expedite~~ maintain the ~~transactions contemplated by this Agreement, JPMCB is hereby appointed to act as Administrative Agent on behalf~~ confidentiality of the ~~Lenders and Issuing Banks. Each of the Lenders and each Issuing Bank hereby irrevocably authorizes~~ Information (as defined below), provided that nothing herein shall prevent the Administrative Agent or any Lender from disclosing any such information (a) 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. Any bank serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, ~~and such bank and its Affiliates may accept deposits from, lend money to and generally engage in~~ any ~~kind of business with the Company, any Borrower~~ other Lender or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuingaffiliate thereof, (b) subject to an agreement to comply with the ~~Administrative Agent shall have no duty~~ provisions of this Section, to ~~take~~ any ~~discretionary action~~ actual or ~~exercise~~ prospective transferee or any ~~discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required~~ direct or indirect counterparty to ~~exercise in writing by the Required Lenders~~ any Swap Agreement (or any professional advisor to such ~~other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02~~counterparty), ~~and~~ (c) ~~except as expressly set forth in the Loan Documents~~to its employees, ~~the Administrative Agent shall have no duty to disclose~~directors, agents, attorneys, accountants and ~~shall not be liable for the failure to disclose, any information relating to the Company, any Borrower~~ other professional advisors or ~~any Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or~~ those of 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~~ affiliates, (d) upon the request ~~of the Required Lenders (~~or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own bad faith, gross negligence or wilful misconduct. The Administrative Agent shall not be deemed to have knowledge demand of any ~~Default unless and until written notice thereof is given~~ Governmental Authority, (e) in response to ~~the Administrative Agent by a Borrower~~ any order of any court or ~~a Lender~~other Governmental Authority or as may otherwise be required pursuant to any Requirement of Law, ~~and the Administrative Agent shall not be responsible for~~ (f) if requested or ~~have any duty~~ required to ~~ascertain or inquire into (i) any statement, warranty or representation made in or~~ do so in connection with any litigation or similar proceeding, (g) that has been publicly disclosed, (h) to the National Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, or (i) in connection with the exercise of any remedy hereunder or under any other Loan Document, or (iij) if agreed by the ~~contents of any certificate~~Borrower in its sole discretion, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or to any other ~~agreement~~Person. For the purposes of this Section, ~~instrument~~ “Information” means all information received from the Borrower relating to the Borrower or ~~document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document~~its business, other than ~~to confirm receipt of items expressly required to be delivered~~ any such information that is available to the Administrative Agent~~. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon~~, any ~~notice~~Issuing Lender, ~~request, certificate, consent, statement, instrument, document~~ or ~~other writing believed by it~~ any Lender on a non-confidential basis prior to ~~be genuine and to have been signed or sent~~ disclosure by the ~~proper Person~~Borrower; provided that, in the case of information received from the Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential. ~~The Administrative Agent also may rely upon any statement made~~ Any Person required to ~~it orally or by telephone and believed by it to be made by~~ maintain 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 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 confidentiality of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and the provisions of Section 10.03 shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent Information as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the right (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII) with the consent of, the Company, which shall not be unreasonably withheld) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the Lenders, appoint a successor Administrative Agent which Section shall be ~~a bank~~ considered to have complied with ~~an office in New York, New York, or an Affiliate of any~~ its obligation to do so if such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Administrative Agent shall be Person has exercised the same degree of care to maintain the confidentiality of such Information as ~~those payable~~ such Person would accord to its predecessor unless otherwise agreed between the Company and such successor. After an Administrative Agent’s resignation hereunder, the provisions of this Article and Section 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 Agentown confidential information. Each Lender acknowledges that information furnished to it ~~has~~pursuant to this Agreement or the other Loan Documents may include material non-public information concerning the Borrower and its Affiliates and their related parties or their respective securities, ~~independently~~ and ~~without reliance upon~~ confirms that it has developed compliance procedures regarding the use of material non-public information and that it will handle such material non-public information in accordance with those procedures and applicable law, including Federal and state securities laws. All information, including requests for waivers and amendments, furnished by the Borrower or the Administrative Agent pursuant to, or ~~any~~ in the course of administering, this Agreement or the other Loan Documents will be syndicate-level information, which may contain material non-public information about the Borrower and its Affiliates and their related parties or their respective securities. Accordingly, each Lender represents to the Borrower and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent ~~or any other Lender~~ that it has identified in its Administrative Questionnaire a credit contact who may receive information that may contain material non-public information in accordance with its compliance procedures and ~~based on such documents~~ applicable law, including Federal and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agent, Documentation Agent or Joint Lead Arranger and Joint Bookrunner on the cover page of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreementstate securities laws.

Appears in 1 contract

Sources: Revolving Credit Agreement (Anadarko Petroleum Corp)

The Administrative Agent. In order to expedite the transactions contemplated by this ~~Agreement~~Agreement and the other Loan Documents, ~~JPMCB~~ The Bank of New York is hereby appointed to act as Administrative Agent on behalf of the Lenders and the Issuing ~~Banks~~Bank. Each of the ~~Lenders~~ Lenders, the Issuing Bank and each assignee of any Lender or the Issuing Bank hereby irrevocably authorizes the Administrative Agent to take such actions on its behalf 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. Any bank serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company, any Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent ~~shall not have~~ is hereby expressly authorized by the Lenders and the Issuing Bank, without hereby limiting any ~~duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing~~implied authority, (a) except as otherwise specifically provided herein, to receive on behalf of the Lenders and the Issuing 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 and the Issuing Bank 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 and the Issuing Bank to the Borrower or any other Obligor of any Event of Default specified in this Agreement and the other Loan Documents 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 have no duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise actual knowledge acquired in ~~writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02),~~ connection with its agency hereunder; and (c) ~~except~~ to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower or any other Obligor pursuant to this Agreement and the other Loan Documents 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 ~~have no 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 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 ~~information relating to~~ inquiry concerning the ~~Company, any~~ performance or observance by the Borrower or any ~~Subsidiary that is communicated to or obtained by the bank serving as Administrative Agent or~~ other Obligor of any of ~~its Affiliates~~ the terms, conditions, covenants or agreements contained herein or in any ~~capacity~~other 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~~ responsible to the Lenders ~~as shall be necessary under~~ or the ~~circumstances as provided in Section 10.02)~~ Issuing Bank for the due execution, genuineness, validity, enforceability or in effectiveness of this Agreement, the ~~absence of its own bad faith, gross negligence~~ other Loan Documents or ~~wilful misconduct~~any other instruments or agreements. The Administrative Agent shall ~~not~~ in all cases be ~~deemed to have knowledge of~~ 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 ~~Default unless and until written notice thereof is given to~~ action or inaction pursuant thereto shall be binding on all the ~~Administrative Agent by a Borrower or a Lender,~~ Lenders and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative AgentIssuing Bank. The Administrative Agent ~~shall~~ shall, in the absence of knowledge to the contrary, be entitled to rely ~~upon, and shall not incur~~ on any ~~liability for relying upon, any notice, request, certificate, consent, statement, instrument,~~ instrument or document ~~or other writing~~ believed by it in good faith to be genuine and correct and to have been signed or sent by the proper ~~Person~~Person or Persons. ~~The~~ Neither the Administrative Agent ~~also may rely upon~~ nor any ~~statement made~~ of its directors, officers, employees or agents shall have any responsibility to ~~it orally~~ the Borrower or ~~by telephone~~ any The Lenders and ~~believed by it~~ the Issuing Bank hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted 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 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 and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs and pursuant to the provisions of ~~Section 10.03~~ this Agreement or any other Loan Document 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. Subject to the appointment and acceptance of a successor Administrative Agent as provided ~~in this paragraph~~below, the Administrative Agent may resign at any time by notifying the ~~Lenders, the Issuing Banks~~ Lenders and the ~~Company~~Borrower, and may be removed at any time with or without cause by the action of all Lenders (other than Administrative Agent, if it is a Lender). Upon any such resignation, the Required Lenders shall have the right ~~(in consultation with, and (unless an Event of Default has occurred and is continuing pursuant to Article VII) with the consent of, the Company, which shall not be unreasonably withheld)~~ to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent ~~may (in consultation with~~may, and (unless an Event of Default has occurred and is continuing pursuant to Article VII), with the consent of the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Administrative Agent shall so request, designate and approve a successor Administrative Agent) on behalf of the ~~Lenders~~Lenders and the Issuing Bank, appoint 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. The fees payable by~~ hereunder and under the ~~Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor~~other Loan Documents. After an the Administrative Agent’s 's resignation or removal hereunder, the provisions of this Article and Section ~~10.03~~ 9.5 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 it hereunder, the Administrative Agent in its individual capacity and not as Administrative Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Administrative Agent, and the Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary of the Borrower or other Affiliate thereof as if it were not Administrative Agent. (a) to reimburse the Administrative Agent, on demand, in the amount of its pro rata share (based on its Pro Rata Percentage of the Revolving Loan 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 Each ~~Lender~~ of the Lenders and the Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Issuing Bank or any ~~other~~ Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this ~~Agreement~~Agreement and the other Loan Documents. Each ~~Lender~~ of the Lenders and the Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative ~~Agent~~ Agent, the Issuing Bank or any ~~other~~ Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this ~~Agreement, any~~ Agreement and the other Loan ~~Document~~Documents, or any related agreement or any document furnished hereunder or thereunder. ~~None of~~ Notwithstanding anything in any Loan Document to the ~~institutions named as~~ contrary, neither the Documentation Agents nor the Syndication Agent, ~~Documentation Agent or Joint Lead Arranger and Joint Bookrunner on the cover page of this Agreement shall~~in each case acting in such capacity, ~~in their capacities as such,~~ shall have any ~~duties~~ duty or ~~responsibilities of any kind~~ obligation under ~~this Agreement~~the Loan Documents.

Appears in 1 contract

Sources: Credit Agreement (On Command Corp)

Appears in 1 contract

Sources: Revolving Credit Agreement (Huntington Ingalls Industries, Inc.)

Appears in 1 contract

Sources: Credit Agreement (WMS Industries Inc /De/)

Appears in 1 contract

Sources: Letter of Credit and Reimbursement Agreement (Unisource Energy Corp)

Appears in 1 contract

Sources: Credit Agreement (Brunswick Corp)

Common use of The Administrative Agent Clause in Contracts