The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: Credit Facility Agreement (Tu Acquisitions PLC), Credit Facility Agreement (Texas Utilities Co /Tx/)
The Agents. In order to expedite Each Lender hereby irrevocably designates and appoints the transactions contemplated by Agents as the agents of such Person under this AgreementAgreement and the other Loan Documents, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF each such Person irrevocably authorizes each Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents in such capacity, to take such actions action on its behalf under the provisions of such Lender or holder this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are specifically expressly delegated to the Agents such Agent by the terms of this Agreement and provisions hereofthe other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by or on behalf of Borrower or any other Loan Party pursuant to this Agreement as received by such Agent. None of its directors, officers, employees or agents the Agents nor any of their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or such other proportion of the Lenders as may be expressly required hereby) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required LendersRequisite Lenders (or such other proportion of the Lenders as may be expressly required hereby). The Collateral Agent hereby agrees that it holds and will hold all of its right, title and interest in, to and under the Security Documents and the Collateral granted to the Collateral Agent thereunder whether now existing or hereafter arising (all such right, title and interest being hereinafter referred to as the “Collateral Estate”) under and subject to the conditions set forth in this Agreement; and the Collateral Agent further agrees that it will hold such Collateral Estate for the benefit of the Secured Parties, for the enforcement of the payment of all Secured Obligations (subject to the limitations and priorities set forth herein and in the respective Security Documents) and as security for the performance of and compliance with the covenants and conditions of this Agreement and each of the Security Documents. All of the powers, remedies and rights of the Collateral Agent as set forth in this Agreement may be exercised by the Collateral Agent in respect of any Security Document as though set forth in full therein and all of the powers, remedies and rights of the Collateral Agent as set forth in any Security Document may be exercised from time to time as herein and therein provided. Subject to the appointment and acceptance of a successor Agent as provided belowbelow and subject to the next succeeding paragraph with respect to the Collateral Agent, either any Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable successor, subject (so long as no Default or Event of Default is continuing) to the BorrowersBorrower’s approval (not to be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Requisite Lenders and approved by Borrower and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor AgentAgent which shall be a bank or financial institution 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 bankbank or financial institution. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor With respect shall succeed to and become vested with all the Loans made by it rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, each the provisions of the Agents, this Section 8.01 and Section 9.05 shall continue in effect for its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage benefit in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) respect of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that while it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information was acting 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 Agents 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 or any related agreement or any document furnished hereunder or thereunderan Agent.
Appears in 2 contracts
Samples: Security Agreement (Emdeon Inc.), Security Agreement (Emdeon Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not bank serving as an 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 an Agent, and each of the Agents such bank and their 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 Borrowers any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder and without any duty to account therefor to the Lenders. Each Lender agrees (i) to reimburse the Agents, on demand, The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the amount other Credit Documents. Without limiting the generality of its pro rata share the foregoing, (based on its Commitment hereunder a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or, if so specified by this Agreement, all the Commitments shall have been terminatedLenders) and (c) except as expressly set forth herein and in the other Credit Documents, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which Administrative Agent shall not have been reimbursed by any duty to disclose, and shall not be liable for the Borrowers and (i) failure to indemnify and hold harmless each of the Agents and disclose, any information relating to any Company or any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating Affiliates that is communicated to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed obtained by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such bank serving as Administrative Agent or any of its directorsAffiliates 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, officersif so specified by this Agreement, employees all the Lenders, or agents. Each Lender agrees that any allocation made as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Article VII and Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Agents of expenses Borrower or other amounts referred to in this paragraph between this Agreement a Lender, and the Facility A Credit Agreement Administrative Agent shall not be conclusive and binding responsible for all purposes. Each Lender acknowledges that it hasor have any duty to ascertain or inquire into (i) any statement, independently and without reliance upon the Agents warranty or any other Lender and based on such documents and information as it has deemed appropriate, representation 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 Agents in 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 connection with this Agreement or any related agreement other Credit Document, (ii) the contents of any certificate, report or other document delivered under any Credit Document or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in the Credit Documents or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document or any document furnished hereunder other agreement, instrument or thereunderdocument, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Time Warner Inc), Credit Agreement (Time Warner Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Canadian Administrative Agent on behalf of the LendersLenders and the Issuing Banks. Each of the Lenders Lenders, each assignee of any Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the Canadian Administrative Agent are hereby expressly authorized by the Lenders and the CAF AgentIssuing Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent Issuing Banks hereunder, and promptly to distribute to each Lender and the CAF Agent or Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person other than the Company or an Affiliate of the Company in a transaction not prohibited by this Agreement. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances provided in Section 10.02) and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for 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 or his or her own gross negligence negligence, bad faith or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower, or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and in good faith believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any such sub-agent and to the Related Parties of each 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 Agent. In taking any discretionary action permitted hereunder, or in determining whether any provision hereof is applicable to any event, transaction or circumstance, the Administrative Agent may, in its discretion, but shall not be taken required (unless required by it pursuant any other express provision hereof) to, communicate such proposed action or determination to the provisions of this Agreement unless it Lenders prior to taking or making the same, and shall be requested entitled (subject to any otherwise applicable requirement of Section 10.02(b)), in writing the absence of any contrary communication received from any Lender within a reasonable period of time specified in such communication from the Administrative Agent, to do so by the Required Lendersassume that such proposed action or determination is satisfactory to such Lender. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersCompany. Upon any such resignation, the Required Lenders Company shall have the right right, with the consent of the Required Lenders (not to be unreasonably withheld or delayed), to appoint a successor Agent acceptable successor; provided, that if a Default has occurred and is continuing, the Required Lenders, and not the Company, shall have the right, in consultation with the Company, to the Borrowersappoint such 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 Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York or Toronto or London, as applicable, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each of the Agents retiring Agent shall be discharged from its duties and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with obligations hereunder. After the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 10.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. It is agreed that the Syndication Agent shall, in its capacity as such, have no duties or responsibilities under this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Molson Coors Brewing Co), Credit Agreement (Molson Coors Brewing Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Canadian Administrative Agent on behalf of the LendersLenders and the Issuing Banks. Each of the Lenders Lenders, each assignee of any Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the Canadian Administrative Agent are hereby expressly authorized by the Lenders and the CAF AgentIssuing Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent Issuing Banks hereunder, and promptly to distribute to each Lender and the CAF Agent or Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required other Loan Party pursuant to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or the other instruments or agreementsLoan Documents as received by the Administrative Agent. The Agents may deem and treat Without limiting the Lender which makes any Loan as the holder generality of the indebtedness resulting therefrom for foregoing, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all purposes hereof until it shall have received notice from the capital stock of such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto Guarantor shall be binding on all sold, transferred or otherwise disposed of to a Person other than the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 Company or an Affiliate of the Company in a transaction not prohibited by this Agreement. It is understood and agreed that the use of the term “agent” herein or in any such bank. Upon other Loan Documents (or any other similar term) with reference to the acceptance Administrative Agent and the Canadian Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any appointment applicable law. Instead such term is used as Agent hereunder by a successor bankmatter of market custom, such successor and is intended to create or reflect only an administrative relationship between contracting parties. With respect to the Loans made by it hereunderunder this Agreement, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent under the Loan Documents and without any duty to account therefor to the Lenders. Each Lender agrees (i) to reimburse the Agents, on demand, The Agents shall not have any duties or obligations except those expressly set forth in the amount Loan Documents, and their duties under the Loan Documents shall be administrative in nature. Without limiting the generality of its pro rata share the foregoing, (based on its Commitment hereunder ora) no Agent shall be subject to any fiduciary or other implied duties, if the Commitments regardless of whether a Default has occurred and is continuing, (b) no Agent shall have been terminatedany duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the amount Loan Documents that such Agent is required to exercise upon receipt of its outstanding Loans) of any expenses incurred for notice in writing by the benefit Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that such Agent shall not be required to take any action that, in its role as Agentopinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law, including counsel fees and compensation for the avoidance of agents and employees paid for services rendered on behalf doubt any action that may be in violation of the Lendersautomatic stay under any Debtor Relief Law or that may effect a forfeiture, which shall not have been reimbursed by the Borrowers modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (ic) except as expressly set forth in the Loan Documents, no Agent shall have any duty to indemnify disclose, and hold harmless each of no Agent shall be liable for the Agents and failure to disclose, any information relating to the Company or any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating Subsidiaries that is communicated to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed obtained by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such institution serving as Agent or any of its directorsAffiliates in any capacity. No Agent shall 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, officers, employees or agents. Each Lender agrees that any allocation made as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence, bad faith or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower, and no Agent shall 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 Agents contents of expenses any certificate, report or other amounts referred to document delivered hereunder or thereunder or in this paragraph between this Agreement and connection herewith or therewith, (iii) the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it hasperformance or observance of any of the covenants, independently and without reliance upon agreements or other terms or conditions set forth herein or therein or the Agents occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other Lender and based on 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 such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this AgreementAgent. Each 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, sent or otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and in good faith 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 also acknowledges or an Issuing Bank, each Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless such Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. Each 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 willin accordance with the advice of any such counsel, independently accountants or experts. Each Agent may perform any and without reliance upon all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each 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 this Article shall apply to any such sub-agent and to the Agents Related Parties of each 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 Agent. In taking any discretionary action hereunder, or in determining whether any provision hereof is applicable to any event, transaction or circumstance, the Administrative Agent may, in its discretion, but shall not be required (unless required by any other Lender and based on express provision hereof) to, communicate such documents and information as it shall from time proposed action or determination to time deem appropriate, continue the Lenders prior to make its own decisions in taking or making the same, and shall be entitled (subject to any otherwise applicable requirement of Section 10.02(b)), in the absence of any contrary communication received from any Lender within a reasonable period of time specified in such communication from the Administrative Agent, to assume that such proposed action or determination is satisfactory to such Lender. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Company. Upon any such resignation, the Company shall have the right, with the consent of the Required Lenders (not taking action under to be unreasonably withheld or based upon delayed), to appoint a successor; provided, that if a Default has occurred and is continuing, the Required Lenders, and not the Company, shall have the right, in consultation with the Company, to appoint such successor. If no successor shall have been so appointed by the Company (or, if applicable, the Required Lenders) and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may (but shall not be obligated to), on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York, New York or Toronto or London, as applicable, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Agent’s resignation hereunder, the provisions of this Agreement Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any related agreement or any document furnished hereunder or thereunderof them while it was acting as Agent.
Appears in 2 contracts
Samples: Credit Agreement (Molson Coors Brewing Co), Credit Agreement (Molson Coors Brewing Co)
The Agents. In order to expedite Appointment . Each Lender hereby irrevocably designates and appoints each Agent as the transactions contemplated by agent of such Lender under this AgreementAgreement and the other Loan Documents, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF each such Lender irrevocably authorizes each Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents in such capacity, to take such actions action on its behalf under the provisions of such Lender or holder this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are specifically expressly delegated to the Agents such Agent by the terms of this Agreement and provisions hereofthe other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, neither Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against either Agent. Without limiting the foregoing, the use of the term "agent" with respect to either Agent is used as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties. The Agents and the Lenders hereby acknowledge and agree that the Administrative Agent is hereby expressly authorized by shall be the only Agent which shall be a "Representative" of the Lenders under the Senior Subordinated Note Indenture (after execution and delivery thereof) and any other Subordinated Debt Documentation (after execution and delivery thereof). The Issuing Bank and the CAF Agent, without hereby limiting any implied authority, (a) to receive Fronting Lenders shall act on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder Letters of Credit and shall not be liable for any action taken Fronted Offshore Loans issued or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be made under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement documents associated therewith. It is understood and agreed that the Issuing Bank and the Fronting Lenders (a) shall be conclusive have all of the benefits and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon immunities (i) provided to the Agents in this Section 12 with respect to acts taken or any other Lender omissions suffered by the Issuing Bank and based on such documents Fronting Lenders in connection with Letters of Credit and information as it has deemed appropriate, Fronted Offshore Loans issued or 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 Agents 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 and the documents associated therewith as fully as if the term "Agents", as used in this Section 12, included the Issuing Bank and the Fronting Lenders with respect to such acts or any related agreement omissions and (ii) as additionally provided in this Agreement and (b) shall have all of the benefits of the provisions of subsection 12.7 or any document furnished hereunder Section 13 as fully as if the term "Agents", as used in subsection 12.7 or thereunderSection 13, included the Issuing Bank and the Fronting Lenders.
Appears in 2 contracts
Samples: Credit and Guarantee Agreement (Kinetic Concepts Inc /Tx/), Credit and Guarantee Agreement (Kinetic Concepts Inc /Tx/)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Each of the Canadian Lenders hereby irrevocably appoints the Canadian Agent is hereby expressly authorized as its agent and authorizes the Canadian Agent to take such actions on its behalf and to exercise such powers as are delegated to the Canadian Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. Each of the UK Lenders hereby irrevocably appoints the UK Agent as its agent and authorizes the CAF UK Agent to take such actions on its behalf and to exercise such powers as are delegated to the UK Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. Each bank serving as an 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 such Agent, without hereby and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth herein. Without limiting any implied authoritythe generality of the foregoing, (a) no Agent shall be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that such 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 11.02), and (c) except as expressly set forth herein, no Agent shall have any duty to disclose, or shall be liable for the CAF Agent all payments of principal of and interest on the Loans and all other amounts due failure to disclose, any information relating to the Lenders and Company or any of its Subsidiaries that is communicated to or obtained by the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No bank serving as such Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 11.02) or in the absence of its or his or her own gross negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower or a Lender, or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or any other instruments agreement, instrument or agreements. The Agents may deem and treat document, or (v) the Lender which makes satisfaction of any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided condition set forth in Article IV or elsewhere herein, other than to confirm receipt of the transfer thereof. The Agents shall in all cases items expressly required to be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks (in the case of the Administrative Agent) and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Banks (in the case of a successor Administrative Agent), appoint a successor Agent, having which, in the case of the Administrative Agent shall be a combined capital bank with an office in New York, New York, or an Affiliate of any such bank; in the case of the Canadian Agent, shall be a bank with an office in Toronto, Canada, or an Affiliate of any such bank; and surplus in the case of at least $500,000,000 the UK Agent, shall be a bank with an office in London, England, or an Affiliate of any such bank. The appointment of a successor Canadian Agent or UK Agent shall be subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld). Upon the acceptance of any its appointment as an Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have the same rights be discharged from its duties and powers as obligations hereunder. The fees payable by any other Lender and may exercise Borrower to a successor Agent shall be the same as though it were not those payable to its predecessor unless otherwise agreed between such Borrower and such successor. After an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 11.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or Agreement, any related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: Credit Agreement (Yellow Roadway Corp), Credit Agreement (Yellow Roadway Corp)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF Agenteach Secured Party, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Secured Parties all payments of principal of and interest on the Loans Obligations, all payments and all other amounts due to the Lenders and the CAF Agent Secured Parties hereunder, and promptly to distribute to each Lender and the CAF Agent Secured Party its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by Borrower pursuant to this Agreement as received by such Agent; (d) to enter into the Security Documents on behalf of the Secured Parties; and (e) to claim all Obligations owed to any Secured Party against Borrower in its own name for the purpose of any Security Documents. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. Without limiting the foregoing, the Lenders acknowledge that the Collateral Agent will use commercially reasonable efforts to substantially comply with the requirements of the Arizona Blind Trust Act, with respect to Mortgaged Properties located in Arizona, pursuant to advice of Arizona local counsel to Borrower. However, the Collateral Agent will in no event be liable to the Lenders for non-compliance with the Arizona Blind Trust Act or for any consequences therefrom. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks, the LC Facility Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, the Issuing Banks and the LC Facility Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI and JPMSI, as Joint Lead Arrangers, nor JPMCB as Syndication Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (Rural Metro Corp /De/), Credit Agreement (Rural Metro Corp /De/)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender, hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by 108 Table of Contents or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither of SSBI or DBSI, each as a Joint Lead Arranger, in such capacity, nor DBSI, as Syndication Agent, or 109 Table of Contents JPMorgan, as Documentation Agent, shall have any obligations, duties or responsibilities, and shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (Constar Inc), Credit Agreement (Constar International Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, London Agent on behalf of the LendersLenders and the Issuing Bank. Each of the Lenders Lenders, each assignee of any Lender and the Issuing Bank hereby irrevocably authorizes the Agents to take such actions on their behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is Agents are hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans and all other amounts due to the Lenders and or the CAF Agent Issuing Bank hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice 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 11.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 11.02) or in the absence of its or his or her own gross negligence or willful wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower, or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each of the Agents retiring Agent shall be discharged from its duties and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with obligations hereunder. After the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 11.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender hereby acknowledges that each institution named on the cover page of this Agreement as Co-Syndication Agent has no duties or responsibilities hereunder other than, in the case of a Co-Syndication Agent that is a Lender, in its capacity as a Lender.
Appears in 2 contracts
Samples: Credit Agreement (Waters Corp /De/), Execution (Waters Corp /De/)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association JPMCB is hereby appointed to act as Administrative Agent Agent, and Chase JPMEL is hereby appointed to act as CAF London Agent, on behalf of the LendersLenders and each Issuing Bank. Each of the Lenders Lenders, each assignee of any such Lender and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or such Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the London Agent are hereby expressly authorized by the Lenders and the CAF Agenteach Issuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Banks all payments of principal of and interest on the Loans Loans, all payments in respect of LC Disbursements and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent or Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, if all applicable mandatory prepayments under Section 2.10(c) shall have been made or arrangements therefor satisfactory to the Administrative Agent shall have been entered into, the Administrative Agent is hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents, in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person that is not an Affiliate of the Company in a transaction permitted by Section 6.03. With respect to any Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise upon receipt of notice 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, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for 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 or his or her own gross negligence or willful wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company or a Lender, or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the revolving credit facility provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each of the Agents retiring Agent shall be discharged from its duties and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with obligations hereunder. After the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 10.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: Credit Facility Agreement (Albany International Corp /De/), Borrowing Subsidiary Agreement (Albany International Corp /De/)
The Agents. In order to expedite Each Lender hereby irrevocably designates and appoints the transactions contemplated by Agents as the agents of such Person under this AgreementAgreement and the other Loan Documents, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF each such Person irrevocably authorizes each Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents in such capacity, to take such actions action on its behalf under the provisions of such Lender or holder this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are specifically expressly delegated to the Agents such Agent by the terms of this Agreement and provisions hereofthe other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by or on behalf of Borrower or any other Loan Party pursuant to this Agreement as received by such Agent. None of its directors, officers, employees or agents the Agents nor any of their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or such other proportion of the Lenders as may be expressly required hereby) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required LendersRequisite Lenders (or such other proportion of the Lenders as may be expressly required hereby). The Collateral Agent hereby agrees that it holds and will hold all of its right, title and interest in, to and under the Security Documents and the Collateral granted to the Collateral Agent thereunder whether now existing or hereafter arising (all such right, title and interest being hereinafter referred to as the “Collateral Estate”) under and subject to the conditions set forth in this Agreement; and the Collateral Agent further agrees that it will hold such Collateral Estate for the benefit of the Secured Parties, for the enforcement of the payment of all Secured Obligations (subject to the limitations and priorities set forth herein and in the respective Security Documents) and as security for the performance of and compliance with the covenants and conditions of this Agreement and each of the Security Documents. All of the powers, remedies and rights of the Collateral Agent as set forth in this Agreement may be exercised by the Collateral Agent in respect of any Security Document as though set forth in full therein and all of the powers, remedies and rights of the Collateral Agent as set forth in any Security Document may be exercised from time to time as herein and therein provided. Subject to the appointment and acceptance of a successor Agent as provided belowbelow and subject to the next succeeding paragraph with respect to the Collateral Agent, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable successor, subject (so long as no Default or Event of Default is continuing) to the BorrowersBorrower’s approval (not to be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Requisite Lenders and approved by Borrower and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank or financial institution 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 bankbank or financial institution. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Section 8.01 and Section 9.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. The Collateral Agent may resign upon 30 days’ notice to the Lenders and Borrower. If the Collateral Agent shall resign as the Collateral Agent under this Agreement and the other Loan Documents, then the Requisite Lenders shall appoint from among the Lenders a successor agent for the Lenders, whereupon such successor agent shall succeed to the rights, powers and duties of the Collateral Agent, and the term “Collateral Agent” means such successor agent effective upon such appointment and approval, and such former Collateral Agent’s rights, powers and duties as the Collateral Agent shall be terminated, without any other or further act or deed on the part of such former Collateral Agent or any of the parties to this Agreement or any holders of the Loans. If no successor agent has accepted appointment as the Collateral Agent by the date that is 30 days following a retiring Collateral Agent’s notice of resignation, the retiring Collateral Agent shall, in consultation with Borrower, appoint a successor Collateral Agent (which successor agent shall be a financial institution of nationally-recognized standing that, in the ordinary course of business, performs functions equivalent to those of the Collateral Agent hereunder), and the retiring Collateral Agent’s resignation shall become effective upon such appointment. After any retiring Collateral Agent’s resignation as the Collateral Agent, the provisions of this Section 8.01 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Agreement and the other Loan Documents. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Holdco, Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.. Notwithstanding anything herein to the contrary, each Lender also acknowledges that the Lien and security interest granted to the Collateral Agent pursuant to the Security Documents and the exercise of any right or remedy by the Collateral Agent thereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and the Security Documents, the terms of the Intercreditor Agreement shall govern and control. The Collateral Agent is authorized to execute and deliver the Intercreditor Agreement and each Lender by making or purchasing an interest in any Loan at any time shall be deemed to have agreed to be bound by the terms and conditions of such agreement. The Lenders and the Issuing Bank irrevocably authorize and instruct the Administrative Agent and the Collateral Agent (and the Administrative Agent and the Collateral Agent are authorized to and hereby agree):
Appears in 2 contracts
Samples: First Lien Security Agreement (Emdeon Inc.), Security Agreement (Emdeon Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A B Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 2 contracts
Samples: Credit Facility Agreement (Tu Acquisitions PLC), Credit Facility Agreement (Texas Utilities Co /Tx/)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each Lender that holds Loans or has Commitments and each holder of any Related Hedging Obligations and each person holding Overdraft Obligations (in each case, in its capacity as such) hereby irrevocably designates and appoints the Collateral Agent as an agent of such person under this Agreement and each other Loan Document to which the Collateral Agent is a party. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers Loan Parties of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any of its directors, officers, employees or agents the Loan Parties pursuant to this Agreement as received by such Agent. None of the Agents nor any of their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders (with the consent of the Borrower, not to be unreasonably withheld) shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent maymay (with the consent of the Borrower, not to be unreasonably withheld), on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the any Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent. In addition, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it any were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI, as Sole Lead Arranger and Sole Bookrunner, nor Citicorp Xxxxx Xxxxxxx, Inc., as Syndication Agent, nor Citicorp North America, Inc., as Documentation Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Polymer Group Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not bank serving as an 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 an Agent, and each of the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder. Each Lender agrees The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ia) the Administrative Agent shall not be subject to reimburse any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the AgentsAdministrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, on demand, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing by the amount of its pro rata share Required Lenders (based on its Commitment hereunder or, if so specified by this Agreement, all the Commitments shall have been terminatedLenders), and (c) except as expressly set forth herein, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which Administrative Agent shall not have been reimbursed any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Company that is communicated to or obtained by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such bank serving as Administrative Agent or any of its directorsAffiliates 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, officersif so specified by this Agreement, employees all the Lenders) or agentsin the absence of its own gross negligence or willful misconduct. Each Lender agrees that The Administrative Agent shall be deemed not to have knowledge of any allocation Default unless and until written notice thereof is given to the Administrative Agent by Parent, any 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 good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 connection with this Agreement or any related agreement other Credit Document, (ii) the contents of any certificate, report or other document delivered under any Credit Document or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in the Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document or any document furnished hereunder other agreement, instrument or thereunderdocument, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints Citibank, N.A. as its administrative agent and authorizes the Agents Citibank, N.A. to take such actions on behalf its behalf, including execution of such Lender or holder the other Loan Documents, and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto, and Citibank, N.A. hereby accepts such appointment. Citibank, N.A. or an Affiliate or designee thereof shall also act as the Collateral Agent under the Loan Documents (for purposes of this Article VIII and Sections 9.03 and 2.14, the Administrative Agent and the Collateral Agent shall be collectively referred to as the “Agents”), and each of the Lenders hereby irrevocably appoints and authorizes Citibank, N.A. (and Citibank, N.A. hereby accepts such appointment) and each such Affiliate and designee to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to this Article VIII for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents as if set forth in full herein with respect thereto. The Administrative Agent is hereby expressly authorized by banks serving as the Agents hereunder shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the CAF same as though they were not an Agent, without hereby and such banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Irish Holdco or any Subsidiary or other Affiliate thereof as if they were not an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the respective Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders and as shall be necessary under the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereundercircumstances as provided in Section 9.02), and promptly (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to distribute disclose, and shall not be liable for the failure to each Lender and the CAF Agent disclose, any information relating to Irish Holdco or any of its proper share of each payment so received; (a) Subsidiaries that is communicated to give notice on behalf of each of the Lenders to the Borrowers of or obtained by any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No bank serving as an Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 or elsewhere in the Loan Documents) or in the absence of its or his or her own gross negligence or willful misconduct. The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the respective Agent by Irish Holdco, the Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained 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 (vi) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person Person. The Agents also may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lenderliability for relying thereon. The Agents may consult with legal counsel (who may be counsel for Irish Holdco, the Subsidiary Guarantors or the Borrower), independent accountants and other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel experts selected by it with respect to all matters arising hereunder them, and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by the respective Agent. The Agents and any such sub-agent may perform any and all their duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant to their respective activities in connection with the provisions syndication of this Agreement unless it shall be requested in writing to do so by the Required Lenderscredit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders Lenders, the Borrower and the Borrowersany Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor AgentAdministrative Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Administrative Agent, in its individual capacity and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights Borrower and powers as any other Lender and may exercise Additional Borrower to a successor Administrative Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower, any Additional Borrower and such successor. After the Administrative Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article VIII and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Administrative Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered 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. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Lenders, the Borrower and any Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed); provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent which shall not have been reimbursed 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 Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers and (i) to indemnify and hold harmless each of the Agents Borrower and any Additional Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent’s resignation hereunder, the provisions of its directors, officers, employees or agents, on demand, this Article VIII and Section 9.03 shall continue in effect for the amount benefit of such pro rata shareretiring Collateral Agent, from its sub-agents and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements their respective Related Parties in respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Collateral Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders, if any, identified in this Agreement as a Lead Arranger, aan Amendment No. 1 Arranger, an Amendment No. 2 Arranger, a Co-Documentation Agent or a Co-Syndication 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 a Lead Arranger, Amendment No. 1 Arranger, Amendment No. 2 Arranger, Co-Documentation Agent and/or Co-Syndication Agent, as applicable, as it makes with respect to the Agents 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 Agents) authorized to act for, any other Lender. The Agents 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 their respective capacities, the Agents are “representatives” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Agents to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Agents) 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 Agents for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Agents are 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 Collateral Agent on behalf of the Secured Parties. The Lenders hereby authorize the Collateral Agent to release or, as applicable, subordinate any Lien granted to or held by the Collateral Agent upon any Collateral and to enter into non-disturbance or similar agreements, in each case, in connection with any Indebtedness incurred pursuant to Section 6.01(b)(xvi)(ii) and any other Indebtedness described in Section 9.13, in connection with dispositions of assets permitted under Section 6.02 or, other than with respect to lien release, in connection with licensing or sub-licensing transactions permitted under Sections 6.02 and 6.03, all as described further therein. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate particular types or items of Collateral and enter into non-disturbance or similar agreements pursuant hereto. The Administrative Agent and the Collateral Agent are authorized to enter into any Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, and extensions, restructuring, renewals, replacements of, such agreements) in connection with the incurrence by any Loan Party of any Permitted Junior Secured Refinancing Debt, Permitted Pari Passu Secured Refinancing Debt or Permitted Refinancing Indebtedness with respect thereto, or any other Indebtedness permitted by the terms of this Agreement to be secured by the Collateral on a pari passu or junior priority secured basis, in each case in order to permit such Indebtedness to be secured by a valid, perfected Lien (with such priority as may be designated by Irish Holdco or relevant Restricted Subsidiary, to the extent such priority is permitted by the Loan Documents), and the parties hereto acknowledge that each Intercreditor Agreement is (if entered into) binding upon them. Each Lender (a) understands, acknowledges and agrees that Liens may be created on the Collateral pursuant to the documentation relating to any Indebtedness incurred as permitted by this Agreement which is (in accordance with the terms hereof) to be secured thereby, on a pari passu, or junior, secured basis to the Liens securing the Secured Obligations, which Liens securing any such other Indebtedness shall be subject to the terms and conditions of the relevant Intercreditor Agreement executed and delivered as required hereby, (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the respective Intercreditor Agreement (if entered into) and (c) hereby authorizes and instructs the Administrative Agent and Collateral Agent to enter into any Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, such agreements) in connection with the incurrence by any Loan Party of any secured Indebtedness as contemplated above, in order to permit such Indebtedness to be secured by a valid, perfected Lien (with such priority as may be designated by the Applicable Borrower or relevant Restricted Subsidiary, to the extent such priority is permitted by the Loan Documents), and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is and CSFB are hereby appointed to act as Co-Administrative Agent Agents and Chase is hereby appointed to act as CAF Payment Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Co-Administrative Agents and the Payment Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Co-Administrative Agents and the Payment Agent by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Any bank serving as Co-Administrative Agent is hereby expressly authorized by or Payment Agent hereunder shall have the Lenders same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not such Co-Administrative Agent or Payment Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers, any Subsidiary or other Affiliate thereof as if it were not such Co- Administrative Agent or Payment Agent hereunder. The Co-Administrative Agents and the CAF Agent, without hereby Payment Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) no Co-Administrative Agent or Payment Agent shall be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Co- Administrative Agent or Payment Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Co- Administrative Agent or Payment 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 CAF Loan Documents, no Co-Administrative Agent all payments of principal of or Payment Agent shall have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and Company or any Subsidiary that is communicated to or obtained by the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the bank serving as Co-Administrative Agent has actual knowledge acquired in connection No or Payment Agent or any of its directors, officers, employees Affiliates in any capacity. No Co- Administrative Agent or agents Payment Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for 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 or his or her own gross negligence or willful wilful misconduct. No Co-Administrative Agent or Payment Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Co-Administrative Agent or Payment Agent by the Borrowers or a Lender, and no such Co-Administrative Agent or Payment Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action Co-Administrative Agent or inaction pursuant thereto shall be binding on all the LendersPayment Agent. Each of the Agents shall, in the absence of knowledge to the contrary, Co-Administrative Agent or Payment Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or personsPerson. No Each Co-Administrative Agent or Payment Agent also may rely upon any of its directors, officers, employees statement made to it orally or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other proper Person, and shall not incur any liability for relying thereon. Each Co-Administrative Agent or any Lender of any of its obligations hereunder or to the other Payment Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Co-Administrative Agent or Payment 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 such Co-Administrative Agent or Payment Agent. Each Co- Administrative Agent or Payment 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 Lenders hereby acknowledge that exculpatory provisions of the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to preceding paragraphs and the provisions of this Agreement unless it Section 10.03 shall be requested apply to any such sub-agent and to the Related Parties of the Co-Administrative Agents or Payment Agent and any such sub-agent, and shall apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Co-Administrative Agent or Payment Agent. Subject to the appointment and acceptance of a successor Co-Administrative Agent or Payment Agent as provided belowin this paragraph, either any Co-Administrative Agent or the Payment Agent may resign at any time by notifying the Lenders and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (f) or (g) of Article VII) the Company, which shall not be unreasonably withheld) to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Co-Administrative Agent or Payment Agent gives notice of its resignation, then the retiring Co- Administrative Agent mayor Payment Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (f) or (g) of Article VII), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Co-Administrative Agent or Payment Agent shall so request, designate and approve a successor Co- Administrative Agent or Payment Agent) on behalf of the Lenders, appoint a successor AgentCo-Administrative Agent or Payment Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Co-Administrative Agent or Payment Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Co-Administrative Agent or Payment Agent, in its individual capacity and not as an the retiring Co-Administrative Agent or Payment Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Borrowers to a successor Co-Administrative Agent or the Payment Agent shall be the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money those payable to and generally engage in any kind of business with its predecessor unless otherwise agreed among the Borrowers and such successor. After a Co-Administrative Agent's or any Subsidiary or other Affiliate thereof as if it were not an the Payment Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 10.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Co- Administrative Agent or Payment Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by any of them while it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such was acting as Co-Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesPayment Agent. Each Lender acknowledges that it has, independently and without reliance upon the Co-Administrative Agents or the Payment 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 Co- Administrative Agents or the Payment 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 or Agreement, any other Loan Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agent or Co-Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (NNG Inc)
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase Documentary Agent and Hibernia is hereby appointed to act as CAF Agent, on behalf Co-Agent for the Lenders under this Agreement. None of the LendersAgents or Co- Agent shall have any duties or responsibilities with respect hereto except those expressly set forth herein or in the other Loan Documents. Each of the Lenders Lender and its successors and permitted assigns hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or holder and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of with its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations agency hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so as directed by the Required Lenders; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent. Subject The Co-Agent is hereby expressly authorized to assist the appointment and acceptance of a successor Administrative Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed requested by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Lenders all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. Each of the Agents The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant 60 to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint from the Lenders a successor AgentAdministrative 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 affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 9.5 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of Viacom; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. Neither the Co-Documentation Agents, the Syndication Agent, the Joint Lead Arrangers nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the First Lien Lenders and the Term C Lenders. Each of the Lenders and each assignee of any such Lender, hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite First Lien Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite First Lien Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower (it being understood that Citicorp North America Inc. may resign from its role as Agent for the First Lien Lenders or as Agent for the Term C Lenders, or both). Upon any such resignation, the Required Requisite First Lien Lenders shall have the right to appoint a successor successor, except that upon any resignation of an Agent acceptable for the Term C Lenders, the Requisite Lenders shall have the right to the Borrowersappoint a successor. If no successor shall have been so appointed by the Required Requisite First Lien Lenders or the Requisite Lenders, as applicable, and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither of SSBI or DBSI, each as a Joint Lead Arranger, in such capacity, nor DBSI, as Syndication Agent, or JPMorgan, as Documentation Agent, or SunTrust Bank, as Co-Documentation Agent, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
The Agents. SECTION 7.01. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association CUSA is hereby appointed to act as Administrative Paying Agent on behalf of the Lenders and Chase is JPMCB and CUSA are hereby appointed to act as CAF Agent, Administrative Agents on behalf of the Lenders. The Administrative Agents do not assume any responsibility or obligation under this Agreement or any duties as agents for the Lenders. The title "Administrative Agent" implies no fiduciary obligation on the part of any Administrative Agent to any Person and the use of such title does not impose on any Administrative Agent any duties under this Agreement. Each of the Lenders hereby irrevocably authorizes the Agents each Agent to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Paying Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Revolving Credit Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Paying Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Paying Agent. It is understood that the Agent Parties and the Syndication Agent shall not have any duties or obligations except those expressly set forth herein. Neither any Agent Party nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents No Agent Party shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents Each Agent Party may deem and treat the Lender which makes any Revolving Credit Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it until, in the case of the Paying Agent, the Paying Agent shall have received notice from such Lender or, in the case of any other Agent Party, such Agent Party shall have received notice from the Paying Agent that it received such notice from such Lender, in each case, given as provided herein, of the transfer thereof. The Agents Each Agent Party shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent Party shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Neither any Agent or Party nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents Agent Party may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents each Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Paying Agent as provided below, either any Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignationresignation of the Paying Agent, the Required Lenders shall have the right to appoint a successor Paying Agent acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Paying Agent gives notice of its resignation, then the retiring Paying Agent may, on behalf of the Lenders, appoint a successor AgentPaying 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 any appointment as a Paying Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent and the retiring Paying Agent shall be discharged from its duties and obligations hereunder. After any Agent's resignation hereunder, the provisions of this Article and Section 8.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Revolving Credit Loans made by it hereunder, each of the Agents, any Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the AgentsPaying Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) Pro Rata Share of any expenses incurred for the benefit of the Lenders in its role as by such Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers Borrower, and (iii) to indemnify and hold harmless each of the Agents Agent Party and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata sharePro Rata Share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as an Agent Party or any of them in any way relating to or arising out of this Agreement or any action taken or omitted by it or any of them under this Agreement to the extent the same shall not have been reimbursed by the BorrowersBorrower; provided that no Lender shall be liable to any Agent Party for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent Party or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith to indemnify the Issuing Banks (to the extent not promptly reimbursed by the Agents Borrower) from and against such Lender's ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against any such Issuing Bank in any way relating to or arising out of this Agreement or any action taken or omitted by such Issuing Bank hereunder or in connection herewith; provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements either (i) resulting from such Issuing Bank's gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction or (ii) relating to the reimbursement of any draw under a Letter of Credit paid after the date on which the Lenders' obligations to purchase or hold participations in Letters of Credit has terminated in accordance with Section 2.03(b). Without limitation of the foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Borrower under Section 8.05, to the extent that such Issuing Bank is not promptly reimbursed for such costs and expenses by the Borrower. For purposes of this paragraph, each Lender's respective ratable share of any amount shall be determined, at any time, according to the sum of (i) the aggregate principal amount of the Revolving Credit Loans outstanding at such time and owing to such Lender, (ii) such Lender's respective Pro Rata Share of the aggregate Available Amount of all Letters of Credit outstanding at such time and (iii) such Lender's respective Unused Commitment at such time; provided that the aggregate principal amount of Revolving Credit Loans owing to the Issuing Banks as a result of drawings under Letters of Credit shall be considered to be owed to the Lenders ratably in accordance with their respective Revolving Credit Commitments (or, if the Revolving Credit Commitments have expired or been terminated, in accordance with clause (ii) of the definition of "Pro Rata Share"). The failure of any Lender to reimburse any such Issuing Bank promptly upon demand for its ratable share of any amount required to be paid by the Lenders to such Issuing Bank as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such Issuing Bank for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse any such Issuing Bank for such other Lender's ratable share of such amount. Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in the prior two paragraphs of this Section 7.01 shall survive the payment in full of principal, interest and all other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposespayable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent Party 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 Agents any Agent Party 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (At&t Corp)
The Agents. In order to expedite Each Lender hereby irrevocably designates and appoints the transactions contemplated by Agents as the agents of such Lender under this AgreementAgreement and the other Loan Documents, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF each Lender irrevocably authorizes each Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents in such capacity, to take such actions action on its behalf under the provisions of such Lender or holder this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are specifically expressly delegated to the Agents such Agent by the terms of this Agreement and provisions hereofthe other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Each Lender that holds Term B-1 Loans or has Term B-1 Commitments and each Qualified Counterparty (in each case, in its capacity as such) hereby irrevocably designates and appoints the Collateral Agent as an agent of such Person under this Agreement and each other Loan Document to which the Collateral Agent is a party. In addition, without hereby limiting any implied authority, each Lender hereby expressly authorizes and directs the Collateral Agent to enter into each Loan Document to which it is a party as its agent. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject The Collateral Agent hereby agrees that it holds and will hold all of its right, title and interest in, to and under the Security Documents and the Collateral granted to the appointment Collateral Agent thereunder whether now existing or hereafter arising (all such right, title and acceptance interest being hereinafter referred to as the “Collateral Estate”) under and subject to the conditions set forth in this Agreement; and the Collateral Agent further agrees that it will hold such Collateral Estate for the benefit of a successor the Secured Parties, for the enforcement of the payment of all Obligations (subject to the limitations and priorities set forth herein and in the respective Security Documents) and as security for the performance of and compliance with the covenants and conditions of this Agreement and each of the Security Documents. All of the powers, remedies and rights of the Collateral Agent as provided belowset forth in this Agreement may be exercised by the Collateral Agent in respect of any Security Document as though set forth in full therein and all of the powers, either remedies and rights of the Collateral Agent as set forth in any Security Document may be exercised from time to time as herein and therein provided. The Administrative Agent may resign at any time by notifying give notice of its resignation to the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon receipt of any such notice of resignation, the Required Requisite Lenders shall have the right right, in consultation with the Borrower, to appoint a successor Agent acceptable to successor, which shall be a bank with an office in New York, New York, having combined capital and surplus of at least $500 million, or an Affiliate of any such bank with an office in the BorrowersUnited States. If no such successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 sixty (60) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, may on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAdministrative Agent 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, having a combined capital then such resignation shall nonetheless become effective in accordance with such notice and surplus of at least $500,000,000 or an Affiliate (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the Issuing Bank under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such bankcollateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the Issuing Bank directly, until such time as the Requisite Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of any a successor’s appointment as Administrative Agent hereunder by a successor bankhereunder, such successor With respect shall succeed to the Loans made by it hereunder, each and become vested with all of the Agentsrights, in its individual capacity powers, privileges and not as an Agent shall have duties of the same rights and powers as any other Lender and may exercise the same as though it were not an retiring (or retired) Administrative Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount retiring Administrative Agent shall be discharged from all of its pro rata share duties and obligations hereunder or under the other Loan Documents (based on its Commitment if not already discharged therefrom as provided above in this Section). After the retiring Administrative Agent’s resignation hereunder or, if and under the Commitments shall have been terminatedother Loan Documents, the amount provisions of its outstanding Loans) of any expenses incurred this Article VIII shall continue in effect for the benefit of the Lenders in its role as such retiring Administrative Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it any of them while 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 Swingline Lender and, if Bank of America is then an Issuing Bank, Bank of America in its capacity as Issuing Bank. 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 Swingline Lender and, if Bank of America is then an Issuing Bank, Bank of America in its capacity as Issuing Bank, (b) the retiring Swingline Lender and, if Bank of America is then an Issuing Bank, Bank of America in its capacity as Issuing Bank, shall be discharged from all of their respective duties and obligations hereunder or under this Agreement the other Loan Documents, and (c) if Bank of America is then an Issuing Bank, 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 extent retiring Issuing Bank to effectively assume the same shall not have been reimbursed by obligations of the Borrowers; provided that no Lender shall be liable retiring Issuing Bank with respect to any Agent for any portion such Letters of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunderCredit.
Appears in 1 contract
Samples: Credit Agreement (Spirit AeroSystems Holdings, Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association Credit Suisse is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and the Fronting Banks (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders and each assignee of any such Lender, hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or Fronting Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentFronting Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Fronting Banks all payments of principal of and interest on the Loans Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent or Fronting Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender and Fronting Bank copies of all notices, financial statements and other materials delivered by the Borrower or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent (other than such materials delivered pursuant to Section 5.04) and the Administrative Agent shall promptly after receipt thereof deliver such notices and distribute such copies to the Lenders and the Fronting Banks, as applicable. Without limiting the generality of its the foregoing, the Agents are hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents. In the event that any party other than the Lenders and the Agents shall participate in all or any portion of the Collateral pursuant to the Security Documents, all rights and remedies in respect of such Collateral shall be controlled by the Collateral Agent. Notwithstanding anything herein to the contrary, no Lender identified herein as Documentation Agent shall have any separate duties, responsibilities, obligations or authority as Documentation Agent hereunder. Neither the Agents nor any of their respective directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents, instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower or any other Loan Party on account of the failure of or delay in performance or breach by the other Agent or any Lender or Fronting Bank of any of its obligations hereunder or to the other Agent or any Lender or Fronting Bank on account of the failure of or delay in performance or breach by any other Lender, Lender or Fronting Bank or the other Agent Borrower or any Borrower other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and each of the Agents shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents neither Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Lenders all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder None of the indebtedness resulting therefrom for all purposes hereof until it Agents or the Borrowers shall have received notice from such be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, and no provision in the Loan Documents and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, given as provided hereinany Borrower or any Subsidiary, or any of the transfer thereoftheir respective Affiliates, by any party hereto. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. Each of the Agents The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint from the Lenders a successor AgentAdministrative 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 affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.5 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of Viacom; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. None of the Documentation Agents, the Syndication Agents, the Joint Lead Arrangers, the Joint Bookrunners or any managing agent shall have any duties, liabilities or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association (i) GSCP is hereby appointed to act as Administrative Agent the Syndication Agent, and (ii) Chase is hereby appointed to act as CAF Agent, the Administrative Agent and the Collateral Agent on behalf of the LendersLenders and the Fronting Bank (for purposes of this Article VIII, the Syndication Agent, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Fronting Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentFronting Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Fronting Bank all payments of principal of and interest on the Loans Loans, all payments in respect of Letter of Credit Disbursements and all other amounts due to the Lenders and the CAF Agent Fronting Bank hereunder, and promptly to distribute to each Lender and or the CAF Agent Fronting Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents. In the event that any party other than the Lenders and the Agents shall participate in all or any portion of the Collateral pursuant to the Security Documents, all rights and remedies in respect of such Collateral shall be controlled by the Collateral Agent. The Syndication Agent, without consent of or notice to any party hereto, may assign any and all of its rights or obligations hereunder to any of its Affiliates. As of the Closing Date, all the obligations of the Syndication Agent, shall terminate. Chase Securities Inc. shall have no obligations under this Agreement. None of the Agents nor any of their respective directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower or any other Loan Party on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Fronting Bank of any of its obligations hereunder or to the other Agent or any Lender or the Fronting Bank on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent Fronting Bank or the Borrower or any Borrower other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that none of the Agents shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment The Lenders further acknowledge and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been agree that so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not long as an Agent shall have the same rights and powers as make any determination to be made by it hereunder or under any other Lender and may exercise the same as though it were not an AgentLoan Document in good faith, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments such Agent shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders no liability in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount respect of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable determination to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunderperson.
Appears in 1 contract
Samples: Credit Agreement (Volume Services America Holdings Inc)
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association Chemical is hereby appointed to act as Administrative Agent, FTX Collateral Agent and FRP Collateral Agent for the Banks under this Agreement and the Security Agreements and Chase is hereby appointed to act as CAF Agent, on behalf the Documentary Agent for the Banks under this Agreement. None of the LendersAgents shall have any duties or responsibilities with respect hereto except those expressly set forth herein or in the other Loan Documents. Each Bank, and each subsequent holder of the Lenders any Promissory Note by its acceptance thereof, hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or holder and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent Banks hereunder, and promptly to distribute to each Lender and the CAF Agent Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders Banks to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder or any as directed by the Required Banks; and (c) to distribute to each Bank copies of its directorsall notices, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document financial statements and other materials delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any pursuant to this Agreement as received by the Administrative Agent. Without limiting the generality of the termsforegoing, conditions, covenants or agreements contained in this Agreement. The the Collateral Agents shall not be responsible are hereby expressly authorized to execute any and all documents (including releases) with respect to the Lenders for collateral under the due executionSecurity Agreements and the rights of the secured parties with respect thereto, genuineness, validity, enforceability or effectiveness as contemplated by and in accordance with the provisions of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the LendersSecurity Agreements. Each of the Agent and the Collateral Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or may exercise any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents their respective agents, officers or employees employees. In addition, each Bank hereby irrevocably authorizes and shall be entitled directs the Collateral Agents to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent mayenter, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of them, into the Agents, FTX Intercreditor Agreement (in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each case of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an FTX Collateral Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information Security Agreements as it has deemed appropriate, made its own credit analysis and decision contemplated pursuant to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent, London Agent and Chase is hereby appointed to act as CAF Agent, Tokyo Agent on behalf of the LendersLenders and the Issuing Bank. Each of the Lenders Lenders, each assignee of any Lender and the Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the other Agents are hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person other than the Company or an Affiliate of the Company in a transaction permitted by Section 6.04. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice 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 11.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 11.02) or in the absence of its or his or her own gross negligence or willful wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower (in which case such Agent shall give written notice to each other Lender), or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each of the Agents retiring Agent shall be discharged from its duties and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with obligations hereunder. After the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 11.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender hereby acknowledges that the Syndication Agent and each Documentation Agent has no rights, duties or liability hereunder other than in its capacity as a Lender.
Appears in 1 contract
Samples: Five Year Credit Agreement (Edwards Lifesciences Corp)
The Agents. SECTION 7.01. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association CUSA is hereby appointed to act as Administrative Paying Agent on behalf of the Lenders and Chase is JPMCB and CUSA are hereby appointed to act as CAF Agent, Administrative Agents on behalf of the Lenders. The Administrative Agents do not assume any responsibility or obligation under this Agreement or any duties as agents for the Lenders. The title "Administrative Agent" implies no fiduciary obligation on the part of any Administrative Agent to any Person and the use of such title does not impose on any Administrative Agent any duties under this Agreement. Each of the Lenders hereby irrevocably authorizes the Agents each Agent to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Paying Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Revolving Credit Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Paying Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Paying Agent. It is understood that the Agent Parties, the Co-Syndication Agents and the Co-Documentation Agents shall not have any duties or obligations except those expressly set forth herein. Neither any Agent Party nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents No Agent Party shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents Each Agent Party may deem and treat the Lender which makes any Revolving Credit Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it until, in the case of the Paying Agent, the Paying Agent shall have received notice from such Lender or, in the case of any other Agent Party, such Agent Party shall have received notice from the Paying Agent that it received such notice from such Lender, in each case, given as provided herein, of the transfer thereof. The Agents Each Agent Party shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent Party shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Neither any Agent or Party nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents Agent Party may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents each Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Paying Agent as provided below, either any Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignationresignation of the Paying Agent, the Required Lenders shall have the right to appoint a successor Paying Agent acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Paying Agent gives notice of its resignation, then the retiring Paying Agent may, on behalf of the Lenders, appoint a successor AgentPaying 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 any appointment as a Paying Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent and the retiring Paying Agent shall be discharged from its duties and obligations hereunder. After any Agent's resignation hereunder, the provisions of this Article and Section 8.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Revolving Credit Loans made by it hereunder, each of the Agents, any Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the AgentsPaying Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) Pro Rata Share of any expenses incurred for the benefit of the Lenders in its role as by such Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers Borrower, and (iii) to indemnify and hold harmless each of the Agents Agent Party and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata sharePro Rata Share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as an Agent Party or any of them in any way relating to or arising out of this Agreement or any action taken or omitted by it or any of them under this Agreement to the extent the same shall not have been reimbursed by the BorrowersBorrower; provided that no Lender shall be liable to any Agent Party for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent Party or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith to indemnify the Issuing Banks (to the extent not promptly reimbursed by the Agents Borrower) from and against such Lender's ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against any such Issuing Bank in any way relating to or arising out of this Agreement or any action taken or omitted by such Issuing Bank hereunder or in connection herewith; provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements either (i) resulting from such Issuing Bank's gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction or (ii) relating to the reimbursement of any draw under a Letter of Credit paid after the date on which the Lenders' obligations to purchase or hold participations in Letters of Credit has terminated in accordance with Section 2.03(b). Without limitation of the foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon demand for its ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Borrower under Section 8.05, to the extent that such Issuing Bank is not promptly reimbursed for such costs and expenses by the Borrower. For purposes of this paragraph, each Lender's respective ratable share of any amount shall be determined, at any time, according to the sum of (i) the aggregate principal amount of the Revolving Credit Loans outstanding at such time and owing to such Lender, (ii) such Lender's respective Pro Rata Share of the aggregate Available Amount of all Letters of Credit outstanding at such time and (iii) such Lender's respective Unused Commitment at such time; provided that the aggregate principal amount of Revolving Credit Loans owing to the Issuing Banks as a result of drawings under Letters of Credit shall be considered to be owed to the Lenders ratably in accordance with their respective Revolving Credit Commitments (or, if the Revolving Credit Commitments have expired or been terminated, in accordance with clause (ii) of the definition of "Pro Rata Share"). The failure of any Lender to reimburse any such Issuing Bank promptly upon demand for its ratable share of any amount required to be paid by the Lenders to such Issuing Bank as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such Issuing Bank for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse any such Issuing Bank for such other Lender's ratable share of such amount. Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in the prior two paragraphs of this Section 7.01 shall survive the payment in full of principal, interest and all other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposespayable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent Party 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 Agents any Agent Party 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Agreement (At&t Corp)
The Agents. In order to expedite the transactions contemplated by this AgreementCiticorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase the U.S. Collateral Agent on behalf of the U.S. Lenders, and Citibank International plc is hereby appointed to act as CAF Agent, the U.K. Administrative Agent and Citicorp Trustee Company Limited is hereby appointed to act as the Euro Collateral Agent on behalf of the Revolving Euro Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent (it being understood that with respect to the Euro Collateral Agent, only to the extent expressly set forth in the Euro Intercreditor Agreement) is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, and all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers of any Default or Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Crown Holdings or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby authorizes the Collateral Agents to enter into the U.S. Intercreditor Agreement and the Euro Intercreditor Agreement, the Receivables Intercreditor Agreement, the Sharing Agreement and each Security Document on behalf of such Lender and to exercise its rights and perform its obligations thereunder. Each of the Revolving Euro Lenders further agrees to supply the U.K. Administrative Agent with any information required by it in order to calculate the Mandatory Cost in accordance with Exhibit U in respect of Eurocurrency Borrowings denominated in Pounds Sterling or Euros. Notwithstanding anything to the contrary in this Agreement, none of the Term B Arranger, Joint Lead Arrangers, the Syndication Agent, the Co-Documentation Agents or the Senior Managing Agent, in such capacities, shall have any obligations, duties or responsibilities, and shall incur no liabilities, under this Agreement or any other Loan Document. Each of the Lenders represents to the Agents only that neither the execution and delivery of the Security Documents by the Administrative Agent and the U.K. Administrative Agent on behalf of such Lender nor the performance thereof by the Administrative Agent and the U.K. Administrative Agent on behalf of such Lender will conflict with or create a default or violation under (a) such Lender’s organizational documents, (b) any other agreement, instrument or document that such Lender is a party to or (c) any applicable law, rule, regulation, order, decree or judgment. Each Revolving Euro Lender and any New Term Euro Lender appoints and designates the U.K. Administrative Agent as the Person holding the power of attorney (“fondé de pouvoir”) within the meaning of Article 2692 of the Civil Code of Quebec for the purposes of the hypothecary security to be granted by each of CROWN Metal Packaging Canada LP, CROWN Metal Packaging Canada Inc. and 3079939 Nova Scotia Company/3079939 Compagnie de la Nouvelle Ecosse pursuant to those deeds of hypothec in the Province of Quebec and, in such capacity, the U.K. Administrative Agent shall hold the hypothecs granted in the Province of Quebec for the benefit of the Revolving Euro Lenders and any New Term Euro Lenders and shall act as their agent in the exercise of the rights conferred thereunder. Each Lender further acknowledges that the first issue of 25% Collateral Demand Mortgage Debentures to be issued pursuant to the Deed of Hypothec may be purchased from the grantor of such hypothec by CROWN Metal Packaging Canada LP, CROWN Metal Packaging Canada Inc. or 3079939 Nova Scotia Company/3079939 Compagnie de la Nouvelle Ecosse by underwriting, purchase, subscription or otherwise notwithstanding the terms of Section 32 of the Act respecting the Special Power of Legal Persons (Quebec).
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Westinghouse of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by Westinghouse pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers Westinghouse of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Lenders all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. Each of the Agents The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint from the Lenders a successor AgentAdministrative 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 affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.5 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of Viacom; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. Neither the Co-Documentation Agents, the Syndication Agent, the Joint Lead Arrangers nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the LendersSECTION 8.1. Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent, the Documentation Agent and the Syndication Agents as its agents, in each agent's capacity as such agent, and authorizes the Administrative Agent, the Documentation Agent and the Syndication Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Administrative Agent, the Documentation Agent and the Syndication Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent, the Documentation Agent is hereby expressly authorized by the Lenders and the CAF Syndication Agents, as the case may be, 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, without hereby the Documentation Agent or the Syndication Agents, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent, the Documentation Agent or the Syndication Agents hereunder. The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not have any duties or obligations except those expressly set forth herein. Without limiting any implied authoritythe generality of the foregoing, (a) the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent, the Documentation Agent or a Syndication Agent, as the case may be, 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 9.2), and (c) except as expressly set forth herein, the CAF Administrative Agent, the Documentation Agent all payments of principal of or the Syndication Agents, as the case may be, shall not have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Company or any of its directorsSubsidiaries that is communicated to or obtained by the bank serving as Administrative Agent, officersthe Documentation Agent or the Syndication Agents, employees as the case may be, or agents any of its Affiliates in any capacity. The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.2) or in the absence of its or his or her own gross negligence or willful misconduct. The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrowers or a Lender, and the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or any other instruments agreement, instrument or agreementsdocument, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be. The Agents may deem and treat Administrative Agent, the Lender which makes any Loan Documentation Agent or the Syndication Agents, as the holder of the indebtedness resulting therefrom for all purposes hereof until it case may be, shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or personsPerson. No The Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, also may rely upon any of its directors, officers, employees statement made to it orally or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other proper Person, and shall not incur any liability for relying thereon. The Administrative Agent, the Documentation Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of Syndication Agents, as the failure of or delay in performance or breach by any other Lendercase may be, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Administrative Agent, the Agents Documentation Agent or the Syndication Agents, as the case may be, may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it the Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, and any such sub-agent of such Related Parties, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Administrative Agent, Documentation Agent or Syndication Agents, as the case may be. Subject to the appointment and acceptance of a successor Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, as provided belowin this paragraph, either (a) the Administrative Agent, the Documentation Agent or a Syndication Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersCompany and (b) the Required Lenders may remove the Administrative Agent in the event of the Administrative Agent's gross negligence or willful misconduct. Upon any such resignationresignation or removal, the Required Lenders shall have the right right, in consultation with the Company (so long as no Event of Default has occurred and is continuing), to appoint a successor Agent acceptable to the Borrowerssuccessor. 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, Documentation Agent or Syndication Agent, as the case may be, gives notice of its resignation, then the retiring Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor Administrative Agent, having Documentation Agent or Syndication Agent, as the case may be, which shall be a combined capital and surplus of at least $500,000,000 bank with an office in New York, New York, or an Affiliate of any such bank; provided that such successor Administrative Agent shall have total assets of not less than $10,000,000,000. Upon the acceptance of any its appointment as Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Administrative Agent, in Documentation Agent or Syndication Agent, as the case may be, and the retiring Administrative Agent, Documentation Agent or Syndication Agent, as the case may be, shall be discharged from its individual capacity duties and not obligations hereunder. The fees payable by the Company to a successor Administrative Agent, Documentation Agent or Syndication Agent, as an Agent the case may be, shall have the same rights and powers as any other Lender and may exercise be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Company and such successor. After the resignation of the Administrative Agent, and each of Documentation Agent or a Syndication Agent, as the Agents and their Affiliates case may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminatedbe, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.3 shall continue in effect for the benefit of the Lenders in its role as such retiring Administrative Agent, including counsel fees and compensation of Documentation Agent or Syndication Agent, as the case may be, its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by any of them while it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilitieswas acting as Administrative Agent, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Documentation Agent or any of its directorsSyndication Agent, officers, employees or agents. Each Lender agrees that any allocation made in good faith by as the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposescase may be. Each Lender acknowledges that it has, independently and without reliance upon the Agents Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, 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 Agents Administrative Agent, the Documentation Agent or the Syndication Agents, as the case may be, 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 or Agreement, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Paying Agent on behalf of the Lenders and Chase is Chase, Credit Suisse First Boston and Goldman Sachs Credit Partners L.P. are hereby appointed to act as CAF Agent, ax Xxxxxisxxxxxve Agents on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents each Agent to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Paying Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Paying Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Paying Agent. It is understood that the Agent Parties shall not have any duties or obligations except those expressly set forth herein. Neither any Agent Party nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents No Agent Party shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents Each Agent Party may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it until, in the case of the Paying Agent, the Paying Agent shall have received notice from such Lender or, in the case of any other Agent Party, such Agent Party shall have received notice from the Paying Agent that it received such notice from such Lender, in each case, given as provided herein, of the transfer thereof. The Agents Each Agent Party shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent Party shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Neither any Agent or Party nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents Agent Party may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents each Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Paying Agent as provided below, either any Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignationresignation of the Paying Agent, the Required Lenders shall have the right to appoint a successor Paying Agent acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Paying Agent gives notice of its resignation, then the retiring Paying Agent may, on behalf of the Lenders, appoint a successor AgentPaying 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 any appointment as a Paying Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent and the retiring Paying Agent shall be discharged from its duties and obligations hereunder. After any Agent's resignation hereunder, the provisions of this Article and Section 8.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Loans made by it hereunder, each of the Agents, any Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the AgentsPaying Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loanshereunder) of any expenses incurred for the benefit of the Lenders in its role as by such Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers Borrower, and (iii) to indemnify and hold harmless each of the Agents Agent Party and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as an Agent Party or any of them in any way relating to or arising out of this Agreement or any action taken or omitted by it or any of them under this Agreement to the extent the same shall not have been reimbursed by the BorrowersBorrower; provided that no Lender shall be liable to any Agent Party for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent Party or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent Party 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 Agents any Agent Party 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each bank serving as an 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 an Agent, and such bank and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Company or Affiliate thereof as if it were not an Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent is hereby shall not have any duties or obligations except those expressly authorized by set forth herein and in the Lenders and other Credit Documents. Without limiting the CAF Agent, without hereby limiting any implied authoritygenerality of the foregoing, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has actual knowledge acquired occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise in connection No writing by the Required Lenders (or, if so specified by this Agreement, all the Lenders) and (c) except as expressly set forth herein and in the other Credit Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Company or any of its Affiliates that is communicated to or obtained by the bank serving as Administrative Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Administrative Agent shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or, if so specified by this Agreement, all the Lenders, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Article VII and Section 9.02) or in the absence of its or his or her own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by any Borrower, or a Lender or an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered under any Credit Document or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in the Credit Documents or the occurrence of any Default, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of any Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Administrative Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected 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) believed by it to be genuine and to have been signed, sent or otherwise authenticated by a proper Person. An initial list of the proper Persons with respect to the Borrowers appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). 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 so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all matters arising material respects (it being understood that oral notices of borrowing will be confirmed in writing by such Borrower in accordance with Section 2.03). 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 an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by the Agents Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it the Administrative Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication 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 belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Borrowers, to appoint a successor Agent which, so long as no Event of Default is continuing, shall be reasonably acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor AgentAdministrative Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring (or retired) Administrative Agent, in its individual capacity and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder or under the same rights and powers as any other Lender and may exercise Credit Documents. The fees payable by the Borrowers to a successor Administrative Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrowers and such successor; provided that the predecessor Administrative Agent shall pay the unearned portion of any fees paid in advance to either the successor Administrative Agent or the Borrowers. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 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 it while it was acting as Administrative Agent. Any resignation by Citibank, N.A. as Administrative Agent pursuant to this Article VIII shall also constitute its resignation as a Swingline Lender. Upon the acceptance of a successor’s appointment as a Swingline Lender the retiring Swingline Lender shall be discharged from all of its duties and obligations hereunder or under the other Credit Documents. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Borrowers and without limiting the obligation of the Agents Borrowers to do so), ratably according to their Commitments in effect (or at any time after the Commitments have terminated, their Revolving Credit Exposures) on the date on which indemnification is sought under this Article VIII (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees Commitments (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminatedterminated earlier, the amount of its outstanding Loanstheir Revolving Credit Exposures) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) immediately prior to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata sharedate), from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or nature whatsoever which may after the payment of the Loans) be imposed on, incurred by or asserted against it such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of this Agreement the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by it such Agent under this Agreement to or in connection with any of the extent the same shall not have been reimbursed by the Borrowersforegoing; provided that no Lender shall be liable to any Agent for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the such Agent’s gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agentsmisconduct. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to The agreements in this paragraph between this Agreement shall survive the payment of the Loans and the Facility A Credit Agreement shall be conclusive and binding for all purposesother amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or Agreement, any related agreement or any document furnished hereunder or thereunder. The Joint-Lead Arrangers, Joint Bookrunners, Co-Syndication Agents and Co-Documentation Agents shall not have any duties or responsibilities under any Credit Document in their capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Time Warner Inc.)
The Agents. In order to expedite the transactions contemplated by this AgreementAgreement and the other Credit Documents, JPMorgan Chase Bank of TexasBank, National Association N.A. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the LendersBanks. Each of the Lenders Banks hereby irrevocably authorizes the Agents Administrative Agent to take such actions on behalf of such Lender or holder Bank and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereofhereof or of any other Credit Document, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Banks all payments of principal of and interest on the Loans Loans, all payments in respect of any L/C Disbursements and all other amounts due to the Lenders and the CAF Agent Banks hereunder, and promptly to distribute to each Lender and the CAF Agent Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders Banks to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Bank copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers Borrower of any of the terms, conditions, covenants or agreements contained in this AgreementAgreement or any other Credit Document. The Agents Neither Agent shall not be responsible to the Lenders Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement Agreement, any other Credit Document or other instruments or agreements. The Agents Administrative Agent may deem and treat the Lender Bank which makes any Loan or the Issuing Bank which issues any Letter of Credit, as the case may be, as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderBank or Issuing Bank, as the case may be, given as provided herein, of the transfer thereof. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders Banks and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the LendersBanks. Each of the Agents The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Neither the Administrative Agent or nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender Bank of any of its obligations hereunder or to the other Agent or any Lender Bank on account of the failure of or delay in performance or breach by any other Lender, Bank or the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder or under any other Credit Document and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders Banks hereby acknowledge that the Agents Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement or any other Credit Document unless it shall be requested in writing to do so by the Required LendersBanks. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders Banks and the BorrowersBorrower. Upon any such resignation, the Required Lenders Banks shall have the right to appoint a successor Administrative Agent acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders Banks and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the LendersBanks, appoint a successor AgentAdministrative 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 any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 11.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. With respect to the Loans made by it hereunder or the Letters of Credit issued by or participated in by it hereunder, as the case may be, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender Bank and may exercise the same as though it were not an Agent, and each of the Agents Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender Bank agrees (i) to reimburse the Agentseach Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding LoansPercentage hereunder) of any expenses incurred for the benefit of the Lenders in its role as Banks by such Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the LendersBanks, which shall not have been reimbursed by the Borrowers Borrower, and (iii) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement Agreement, any other Credit Document or any action taken or omitted by it or any of them under this Agreement or any other Credit Document to the extent the same shall not have been reimbursed by the BorrowersBorrower; provided PROVIDED that no Lender Bank shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender Bank acknowledges that it has, independently and without reliance upon the Agents Administrative Agent or any other Lender Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Bank also acknowledges that it will, independently and without reliance upon the Agents Administrative Agent or any other Lender Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder. Neither the Documentation Agent nor the Syndication Agent shall have any duties or responsibilities in its capacity as such.
Appears in 1 contract
Samples: Lucent Technologies Inc
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act FTX Collateral Agent for the Banks under this Agreement and the FTX Security Agreement and as CAF Agent, on behalf Documentation Agent for the Banks under this Agreement. None of the LendersAgents shall have any duties or responsibilities with respect hereto except those expressly set forth herein. Each Bank, and each subsequent holder of the Lenders any Promissory Note by its acceptance thereof, hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or holder and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent Banks hereunder, and promptly to distribute to each Lender and the CAF Agent Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders Banks to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent or any with its agency hereunder; and (c) to distribute to each Bank copies of its directorsall notices, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document financial statements and other materials delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any Borrower pursuant to this Agreement as received by the Administrative Agent. Without limiting the generality of the termsforegoing, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible the FTX Collateral Agent is hereby expressly authorized to execute any and all documents (including releases) with respect to the Lenders collateral for the due executionLoans and the rights of the secured parties with respect thereto, genuineness, validity, enforceability or effectiveness as contemplated by and in accordance with the provisions of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithFTX Security Agreement. Each of the Agents may execute exercise any and all of its duties hereunder by or through agents their respective agents, officers or employees employees. In addition, each Bank hereby irrevocably authorizes and shall be entitled to rely upon directs the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right FTX Collateral Agent to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent mayenter, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of them, into the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this respective Intercreditor Agreement and the Facility A Credit FTX Security Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision contemplated pursuant to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Fm Properties Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints Citibank, N.A. as its administrative agent and authorizes the Agents Citibank, N.A. to take such actions on behalf its behalf, including execution of such Lender or holder the other Loan Documents, and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto, and Citibank, N.A. hereby accepts such appointment. Citibank, N.A. or an Affiliate or designee thereof shall also act as the Collateral Agent under the Loan Documents (for purposes of this Article VIII and Sections 9.03 and 2.14, the Administrative Agent and the Collateral Agent shall be collectively referred to as the “Agents”), and each of the Lenders hereby irrevocably appoints and authorizes Citibank, N.A. (and Citibank, N.A. hereby accepts such appointment) and each such Affiliate and designee to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to this Article VIII for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents as if set forth in full herein with respect thereto. The Administrative Agent is hereby expressly authorized by banks serving as the Agents hereunder shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the CAF same as though they were not an Agent, without hereby and such banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Irish Holdco or any Subsidiary or other Affiliate thereof as if they were not an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the respective Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders and as shall be necessary under the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereundercircumstances as provided in Section 9.02), and promptly (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to distribute disclose, and shall not be liable for the failure to each Lender and the CAF Agent disclose, any information relating to Irish Holdco or any of its proper share of each payment so received; (a) Subsidiaries that is communicated to give notice on behalf of each of the Lenders to the Borrowers of or obtained by any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No bank serving as an Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 or elsewhere in the Loan Documents) or in the absence of its or his or her own gross negligence or willful misconduct. The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the respective Agent by Irish Holdco, the Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained 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 (vi) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person Person. The Agents also may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lenderliability for relying thereon. The Agents may consult with legal counsel (who may be counsel for Irish Holdco, the Subsidiary Guarantors or the Borrower), independent accountants and other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel experts selected by it with respect to all matters arising hereunder them, and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by the respective Agent. The Agents and any such sub-agent may perform any and all their duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant to their respective activities in connection with the provisions syndication of this Agreement unless it shall be requested in writing to do so by the Required Lenderscredit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders Lenders, the Borrower and the Borrowersany Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor AgentAdministrative Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Administrative Agent, in its individual capacity and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights Borrower and powers as any other Lender and may exercise Additional Borrower to a successor Administrative Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower, any Additional Borrower and such successor. After the Administrative Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article VIII and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Administrative Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered 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. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Lenders, the Borrower and any Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed); provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent which shall not have been reimbursed 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 Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers and (i) to indemnify and hold harmless each of the Agents Borrower and any Additional Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent’s resignation hereunder, the provisions of its directors, officers, employees or agents, on demand, this Article VIII and Section 9.03 shall continue in effect for the amount benefit of such pro rata shareretiring Collateral Agent, from its sub-agents and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements their respective Related Parties in respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Collateral Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders, if any, identified in this Agreement as a Lead Arranger, an Amendment No. 1 Arranger, an Amendment No. 2 Arranger, an Amendment No. 3 Arranger, an Amendment No. 4 Arranger, a Co-Documentation Agent or a Co-Syndication 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 a Lead Arranger, Amendment No. 1 Arranger, Amendment Xx. 0 Xxxxxxxx, Xxxxxxxxx Xx. 0 Arranger, Amendment No. 4 Arranger, Co-Documentation Agent and/or Co-Syndication Agent, as applicable, as it makes with respect to the Agents 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 Agents) authorized to act for, any other Lender. The Agents 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 their respective capacities, the Agents are “representatives” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Agents to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Agents) 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 Agents for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Agents are 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 Collateral Agent on behalf of the Secured Parties. The Lenders hereby authorize the Collateral Agent to release or, as applicable, subordinate any Lien granted to or held by the Collateral Agent upon any Collateral and to enter into non-disturbance or similar agreements, in each case, in connection with any Indebtedness incurred pursuant to Section 6.01(b)(xvi)(ii) and any other Indebtedness described in Section 9.13, in connection with dispositions of assets permitted under Section 6.02 or, other than with respect to lien release, in connection with licensing or sub-licensing transactions permitted under Sections 6.02 and 6.03, all as described further therein. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate particular types or items of Collateral and enter into non-disturbance or similar agreements pursuant hereto. The Administrative Agent and the Collateral Agent are authorized to enter into any Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, and extensions, restructuring, renewals, replacements of, such agreements) in connection with the incurrence by any Loan Party of any Permitted Junior Secured Refinancing Debt, Permitted Pari Passu Secured Refinancing Debt or Permitted Refinancing Indebtedness with respect thereto, or any other Indebtedness permitted by the terms of this Agreement to be secured by the Collateral on a pari passu or junior priority secured basis, in each case in order to permit such Indebtedness to be secured by a valid, perfected Lien (with such priority as may be designated by Irish Holdco or relevant Restricted Subsidiary, to the extent such priority is permitted by the Loan Documents), and the parties hereto acknowledge that each Intercreditor Agreement is (if entered into) binding upon them. Each Lender (a) understands, acknowledges and agrees that Liens may be created on the Collateral pursuant to the documentation relating to any Indebtedness incurred as permitted by this Agreement which is (in accordance with the terms hereof) to be secured thereby, on a pari passu, or junior, secured basis to the Liens securing the Secured Obligations, which Liens securing any such other Indebtedness shall be subject to the terms and conditions of the relevant Intercreditor Agreement executed and delivered as required hereby, (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the respective Intercreditor Agreement (if entered into) and (c) hereby authorizes and instructs the Administrative Agent and Collateral Agent to enter into any Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, such agreements) in connection with the incurrence by any Loan Party of any secured Indebtedness as contemplated above, in order to permit such Indebtedness to be secured by a valid, perfected Lien (with such priority as may be designated by the Applicable Borrower or relevant Restricted Subsidiary, to the extent such priority is permitted by the Loan Documents), and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf Each of the LendersLenders hereby irrevocably appoints Chase and Citibank as its agent hereunder and under the other Loan Documents and authorizes Chase and Citibank to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agents by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Each of the Lenders hereby irrevocably appoints Citibank as its paying agent hereunder and under the other Loan Documents and authorizes the Agents Citibank to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Paying Agent by the terms hereof or thereof, together with such actions and provisions hereofpowers as are reasonably incidental thereto. Each of the Lenders hereby irrevocably appoints Chase as its collateral agent hereunder and under the other Loan Documents and authorizes Chase to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The Administrative following provisions of this Article IX shall apply to the Collateral Agent is hereby expressly authorized by the Lenders and the CAF AgentPaying Agent mutatis mutandis. The Persons serving as the Administrative Agents 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 Agents, without hereby and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agents hereunder. The Administrative Agents shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) the Administrative Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Lenders Administrative 76 -72- LOAN AGREEMENT Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the CAF Agent all payments of principal of other Loan Documents that the Administrative Agents are required to exercise in writing by the Required Lenders, and interest on (c) except as expressly set forth herein and in the Loans other Loan Documents, the Administrative Agents shall not have any duty to disclose, and all other amounts due shall not be liable for the failure to disclose, any information relating to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Borrower or any of its directors, officers, employees Subsidiaries that is communicated to or agents obtained by the bank serving as Administrative Agents or any of its Affiliates in any capacity. The Administrative Agents shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders or in the absence of its or his or her own gross negligence or willful misconduct. The Administrative Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agents by the Borrower or a Lender, or and the Administrative Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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 herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants (iv) the validity, enforceability, effectiveness or agreements contained in 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 V or elsewhere herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agents. The Administrative Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. The Administrative Agents also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the The Administrative Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for an Obligor, Member or the Sponsor), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Administrative Agents may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agents. The Administrative Agents and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it the Administrative Agents and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Administrative Agents. Subject to the appointment and acceptance of a successor Agent as provided below, either Each Administrative Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Borrower, to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent's resignation shall nonetheless become effective and (1) the retiring LOAN AGREEMENT Administrative Agent may, on behalf shall be discharged from its duties and obligations hereunder and (2) the Required Lenders shall perform the duties of the LendersAdministrative 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 Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bankagent as provided for above in this paragraph. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity retiring (or retired) Administrative Agent and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by the same rights and powers as any other Lender and may exercise Borrower to a successor Administrative Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of this Article and Section 10.03 shall continue in effect for its outstanding Loans) benefit in respect of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposeswhile it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Except as otherwise provided in Section 10.02(b) with respect to this Agreement, the Administrative Agent and the Collateral Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents to which it is a party; provided that, without the prior consent of each Lender, (a) the Collateral Agent shall not (except as provided herein or in the Security Documents) release any collateral or otherwise terminate any Lien under any Security Document providing for collateral security, agree to additional obligations being secured by such collateral security (unless the Lien for such additional obligations shall be junior to the Lien in favor of the other obligations secured by such Security Document, in which event the Collateral Agent may consent to such junior Lien provided that it obtains the consent of the Required Lenders thereto), alter the relative priorities of the obligations entitled to the benefits of the Liens created under the Security Documents, except that no such consent shall be required, and the Collateral Agent is hereby authorized, to release any Lien covering property that is the subject of either a disposition of property permitted hereunder or a disposition to which the Required Lenders have consented.
Appears in 1 contract
Samples: Loan Agreement (NRG Energy Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Lenders all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; , (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder None of the indebtedness resulting therefrom for all purposes hereof until it Agents or the Borrowers shall have received notice from such be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, and no provision in the Loan Documents and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, given as provided hereinany Borrower or any Subsidiary, or any of the transfer thereoftheir respective Affiliates, by any party hereto. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. Each of the Agents The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender Borrower on account of the failure of or delay in performance or breach by any Lender or Issuing Lender of any of its obligations hereunder or to any Lender or Issuing Lender on account of the failure of or delay in performance or breach [[3890129]] 77 by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint from the Lenders a successor AgentAdministrative 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 affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.5 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative Agent and any of its directors, officers, employees or agents, on demand, [[3890129]] in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of Viacom; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. None of the Documentation Agents, the Syndication Agents, the Joint Lead Arrangers, the Joint Bookrunners or any managing agent shall have any duties, liabilities or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement to serve as administrative agent and collateral agent hereunder and under the other Loan Documents, and authorizes the Agents such entity to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documents, together with such actions and provisions hereofpowers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than the United States, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Issuing Banks Agent in the heading of this Agreement to serve as the issuing banks agent hereunder and under the other Loan Documents and authorizes such entity to take such actions and to exercise such powers as are delegated to the Issuing Banks Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent is hereby expressly authorized by or the Lenders Issuing Banks 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 or the Issuing Banks Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent or the Issuing Banks Agent hereunder. The Administrative Agent and the CAF Agent, without hereby Issuing Banks Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) neither the Administrative Agent nor the Issuing Banks Agent shall be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither the Administrative Agent nor the Issuing Banks Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders and as shall be necessary under the CAF circumstances as provided in Section 9.02) or that the Issuing Banks Agent all payments of principal of and interest on the Loans and all other amounts due is required to the Lenders and the CAF Agent hereunderexercise, and promptly to distribute to each Lender and (c) except as expressly set forth in the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which Loan Documents, neither the Administrative Agent has actual knowledge acquired in connection No nor the Issuing Banks Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of the Subsidiaries that is communicated to or obtained by the entity serving as Administrative Agent, the Issuing Banks Agent or any of its directors, officers, employees or agents their Affiliates in any capacity. The Administrative Agent shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its or his or her own gross negligence or willful misconduct. The Issuing Banks Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Issuing Banks or in the absence of its own gross negligence or willful misconduct. Neither the Administrative Agent nor the Issuing Banks Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent or the Issuing Banks Agent by the Borrower, a Lender or an Issuing Bank, and neither the Administrative Agent nor the Issuing Banks Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or the Issuing Banks Agent, as applicable. The Agents Without limiting the foregoing, the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into whether any Lender is at any time an Affiliated Assignee and, unless the Administrative Agent shall have received, pursuant to the Lenders covenants, if any, of such Lender set forth in the Assignment and Assumption pursuant to which such Lender shall have purchased and assumed any Loan or Commitment hereunder, prior written notice from any Lender that such Lender is an Affiliated Assignee, the Administrative Agent may deal with such Lender (including for purposes of determining the due executionconsent, genuinenessapproval, validity, enforceability or effectiveness of this Agreement vote or other instruments similar action of the Lenders or agreementsthe Lenders of any Class), and shall not incur any liability for so doing, as if such Lender were not an Affiliated Assignee. The Agents may deem Administrative Agent and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it Issuing Banks Agent shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Without limiting the foregoing, the Issuing Banks Agent shall not be responsible for or persons. No Agent have any duty to ascertain or inquire into whether any of its directors, officers, employees or agents Viacom Beneficiary Cash Collateral Release shall have occurred (or into the amount thereof), and may determine the existence of any responsibility Viacom XX Xxxx Collateral Excess solely on the basis of the notices provided to the Borrowers on account of Issuing Banks Agent by the Borrower pursuant to Section 5.02(e) (and shall incur no liability for any errors in such determination arising from the failure of or delay in performance or breach by the other Borrower to deliver any such notice). The Administrative Agent and Issuing Banks 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 Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Administrative Agent and the Issuing Banks Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Administrative Agent and the Issuing Banks 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 Lenders hereby acknowledge that Administrative Agent, the Agents Issuing Banks Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of the Administrative Agent, the Issuing Banks 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 or Issuing Banks Agent, as applicable. Without limiting the foregoing, the Issuing Banks Agent may appoint any Issuing Bank as a sub-agent of the Issuing Banks Agent for the purpose of holding any XX Xxxx Collateral. Each Issuing Bank agrees that, notwithstanding any such appointment of an Issuing Bank as a sub-agent of the Issuing Banks Agent, the Issuing Banks Agent shall retain exclusive dominion and control, including the exclusive right of withdrawal, over the XX Xxxx Collateral Account (which term, for purposes of this Agreement unless it paragraph and each other provision hereof where the context so requires (including Sections 2.06(h)(vi) and 2.06(h)(vii)), shall be requested include any deposit or other account in writing which any such sub-agent holds any XX Xxxx Collateral) and the XX Xxxx Collateral (which term, for the avoidance of doubt, shall include any portion thereof held by any sub-agent of the Issuing Banks Agent), except to do so by the Required Lendersextent such dominion and control shall have been delegated to such Issuing Bank as a sub-agent of the Issuing Banks Agent. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right right, with the Borrower’s consent (which consent shall not be unreasonably withheld or delayed), to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor AgentAdministrative Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 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. Subject to the Loans made appointment and acceptance of a successor to the Issuing Banks Agent as provided in this paragraph, the Issuing Banks Agent may resign at any time by it hereundernotifying the Administrative Agent, each of the AgentsIssuing Banks and the Borrower. Upon any such resignation, in its individual capacity and not as an Agent the Issuing Banks shall have the same rights right, with the Borrower’s consent (which consent shall not be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Issuing Banks and powers shall have accepted such appointment within 30 days after the retiring Issuing Banks Agent gives notice of its resignation, then the retiring Issuing Banks Agent may, on behalf of the Issuing Banks, appoint a successor Issuing Banks 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 any other Lender Issuing Banks Agent hereunder by a successor, such successor shall succeed to and may exercise become vested with all the same as though it were not an rights, powers, privileges and duties of the retiring Issuing Banks Agent, and each the retiring Issuing Banks Agent shall be discharged from its duties and obligations hereunder. After the Issuing Banks Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the Agents benefit of such retiring Issuing Banks Agent, its sub-agents and their Affiliates may accept deposits from, lend money respective Related Parties in respect of any actions taken or omitted to and generally engage in be taken by any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof them while it was acting as if it were not an Issuing Banks Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender Issuing Bank acknowledges that it has, independently and without reliance upon the Agents Administrative Agent, the Issuing Banks Agent, any other Lender or any other Lender Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents Administrative Agent, the Issuing Banks Agent, any other Lender or any other Lender Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. The banks (or Affiliates thereof) identified in this Agreement as a “documentation agent” or “syndication agent” shall not have any right, power, liability, responsibility or duty under this Agreement other than those applicable to all banks herein.
Appears in 1 contract
Samples: Credit Agreement (Blockbuster Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) as provided in Article VII, to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither the Agents nor any of its their directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement Agreement, or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the The Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it them in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent Lender or any a Borrower of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the The Agents may execute any and all duties hereunder and under the other Loan Documents by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it them with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it them in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it them pursuant to the provisions of this Agreement or any other Loan Document unless it they shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor AgentAdministrative 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 affiliate of any such bank. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 10.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. With respect to the Loans made by it hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an Agentthe Agents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Holdings or any Subsidiary or other Affiliate thereof as if it they were not an Agentthe Agents. Each Lender agrees (ia) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by one of the Borrowers and (ib) to indemnify and hold harmless each of the Agents and any of its their directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it them in their capacity as Agents or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrowers; provided PROVIDED that no Lender shall be liable to any Agent the Agents for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful wilful misconduct of such Agent the Agents or any of its their directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriateapplicable, 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 Agents or any other Lender and based on such documents and information informa tion as it shall from time to time deem appropriateapplicable, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each bank serving as an 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 an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Company or Affiliate thereof as if it were not an Agent hereunder. The Administrative Agent is hereby shall not have any duties or obligations except those expressly authorized by set forth herein. Without limiting the Lenders and generality of the CAF Agent, without hereby limiting any implied authorityforegoing, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has actual knowledge acquired occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in connection No writing by the Required Lenders (or, if so specified by this Agreement, all the Lenders), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Company that is communicated to or obtained by the bank serving as Administrative Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Administrative Agent shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or, if so specified by this Agreement, all the Lenders) or in the absence of its or his or her own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by any Borrower or a Lender, or and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered under any Credit Document or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in the Credit Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of any Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Agents Administrative Agent shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith to be genuine and correct and to have been signed or sent by a proper Person. An initial list of the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility Persons with respect to the Borrowers appears on account of Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the failure of equivalent office). The Administrative Agent also may rely upon any statement made to it orally or delay in performance or breach by telephone and believed by it to be made by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lenderproper Person, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall not incur any liability for relying thereon so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all material respects (it being understood that oral notices of borrowing will be entitled to rely upon the advice of confirmed in writing by such Borrower in accordance with Section 2.03). The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agents Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it the Administrative Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication 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 belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Borrowers, to appoint a successor Agent which, so long as no Event of Default is continuing, shall be reasonably acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor AgentAdministrative Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Administrative Agent, in its individual capacity and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Borrowers to a successor Administrative Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 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 it while it was acting as Administrative Agent. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Borrowers and without limiting the obligation of the Agents Borrowers to do so), ratably according to their Commitments in effect (or at any time after the Commitments have terminated, their Revolving Credit Exposures) on the date on which indemnification is sought under this Article VIII (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees Commitments (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminatedterminated earlier, the amount of its outstanding Loanstheir Revolving Credit Exposures) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) immediately prior to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata sharedate), from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or nature whatsoever which may after the payment of the Loans) be imposed on, incurred by or asserted against it such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of this Agreement the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by it such Agent under this Agreement to or in connection with any of the extent the same shall not have been reimbursed by the Borrowersforegoing; provided that no Lender shall be liable to any Agent for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the such Agent's gross negligence or willful misconduct misconduct. The agreements in this Section shall survive the payment of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or Loans and all other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposespayable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or Agreement, any related agreement or any document furnished hereunder or thereunder. The Co-Syndication Agents and Co-Documentation Agents shall not have any duties or responsibilities under any Credit Document in their capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Time Warner Inc)
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase Documentary Agent and Hibernia is hereby appointed to act as CAF Agent, on behalf Co-Agent for the Lenders under this Agreement. None of the LendersAgents or Co- Agent shall have any duties or responsibilities with respect hereto except those expressly set forth herein or in the other Loan Documents. Each of the Lenders Lender and its successors and permitted assigns hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or holder and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower and the Guarantor of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of with its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations agency hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so as directed by the Required Lenders; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower or the Guarantor pursuant to this Agreement as received by the Administrative Agent. Subject The Co-Agent is hereby expressly authorized to assist the appointment and acceptance of a successor Administrative Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed requested by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association Chemical is hereby appointed to act as Administrative Agent, FTX Collateral Agent and FCX Collateral Agent for the Banks under this Agreement and the Security Agreements and Chase is hereby appointed to act as CAF Agent, on behalf the Documentary Agent for the Banks under this Agreement. None of the LendersAgents shall have any duties or responsibilities with respect hereto except those expressly set forth herein. Each Bank, and each subsequent holder of the Lenders any Promissory Note by its acceptance thereof, hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or holder and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent Banks hereunder, and promptly to distribute to each Lender and the CAF Agent Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders Banks to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent or any with its agency hereunder; and (c) to distribute to each Bank copies of its directorsall notices, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document financial statements and other materials delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any Borrower pursuant to this Agreement as received by the Administrative Agent. Without limiting the generality of the termsforegoing, conditions, covenants or agreements contained in this Agreement. The the Collateral Agents shall not be responsible are hereby expressly authorized to execute any and all documents (including releases) with respect to the Lenders for Collateral and the due executionrights of the secured parties with respect thereto, genuineness, validity, enforceability or effectiveness as contemplated by and in accordance with the provisions of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithSecurity Agreements. Each of the Agents may execute exercise any and all of its duties hereunder by or through agents their respective agents, officers or employees employees. In addition, each Bank hereby irrevocably authorizes and shall be entitled directs each Collateral Agent to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent mayenter, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of them, into the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this respective Intercreditor Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information Security Agreements as it has deemed appropriate, made its own credit analysis and decision contemplated pursuant to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender, hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by such Agent. Neither Agent or nor any of its directors, officers, employees or agents Related Parties shall be liable to the Lenders as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements 110 contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Neither any Agent or nor any of its directors, officers, employees or agents Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents neither Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent 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 any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers CCSC or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents either 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 Agents either 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby authorizes the Administrative Agent to enter into the Intercreditor Agreement on behalf of such Lender and to exercise its rights and perform its obligations thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not bank serving as an 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 an Agent, and each of the Agents such bank and their 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 Borrowers any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder and without any duty to account therefor to the Lenders. Each Lender agrees (i) to reimburse the Agents, on demand, The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the amount other Credit Documents. Without limiting the generality of its pro rata share the foregoing, (based on its Commitment hereunder a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or, if so specified by this Agreement, all the Commitments shall have been terminatedLenders) and (c) except as expressly set forth herein and in the other Credit Documents, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which Administrative Agent shall not have been reimbursed by any duty to disclose, and shall not be liable for the Borrowers and (i) failure to indemnify and hold harmless each of the Agents and disclose, any information relating to any Company or any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating Affiliates that is communicated to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed obtained by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such bank serving as Administrative Agent or any of its directorsAffiliates 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, officersif so specified by this Agreement, employees all the Lenders, or agents. Each Lender agrees that any allocation made as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Article VII and Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Agents of expenses Borrower, a Lender or other amounts referred to in this paragraph between this Agreement an Issuing Bank, and the Facility A Credit Agreement Administrative Agent shall not be conclusive and binding responsible for all purposes. Each Lender acknowledges that it hasor have any duty to ascertain or inquire into (i) any statement, independently and without reliance upon the Agents warranty or any other Lender and based on such documents and information as it has deemed appropriate, representation 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 Agents in 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 connection with this Agreement or any related agreement other Credit Document, (ii) the contents of any certificate, report or other document delivered under any Credit Document or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in the Credit Documents or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document or any document furnished hereunder other agreement, instrument or thereunderdocument, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Time Warner Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Lenders all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder None of the indebtedness resulting therefrom for all purposes hereof until it Agents or the Borrowers shall have received notice from such be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, and no provision in the Loan Documents and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, given as provided hereinany Borrower or any Subsidiary, or any of the transfer thereoftheir respective Affiliates, by any party hereto. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. Each of the Agents The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint from the Lenders a successor AgentAdministrative 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 affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.5 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of Viacom; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. None of the Co-Documentation Agents, the Syndication Agent, the Joint Lead Arrangers, the Joint Bookrunners or any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: New Viacom Corp.
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not bank serving as an 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 an Agent, and each of the Agents such bank and their 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 Borrowers any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder and without any duty to account therefor to the Lenders. Each Lender agrees (i) to reimburse the Agents, on demand, The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the amount other Credit Documents. Without limiting the generality of its pro rata share the foregoing, (based on its Commitment hereunder a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or, if so specified by this Agreement, all the Commitments shall have been terminatedLenders) and (c) except as expressly set forth herein and in the other Credit Documents, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which Administrative Agent shall not have been reimbursed by any duty to disclose, and shall not be liable for the Borrowers and (i) failure to indemnify and hold harmless each of the Agents and disclose, any information relating to any Company or any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating Affiliates that is communicated to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed obtained by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such bank serving as Administrative Agent or any of its directorsAffiliates 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, officersif so specified by this Agreement, employees all the Lenders, or agents. Each Lender agrees that any allocation made as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Article VII and Section 9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Agents of expenses Borrower or other amounts referred to in this paragraph between this Agreement a Lender, and the Facility A Credit Agreement Administrative Agent shall not be conclusive and binding responsible for all purposes. Each Lender acknowledges that it hasor have any duty to ascertain or inquire into (i) any statement, independently and without reliance upon the Agents warranty or any other Lender and based on such documents and information as it has deemed appropriate, representation 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 Agents in 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 connection with this Agreement or any related agreement other Credit Document, (ii) the contents of any certificate, report or other document delivered under any Credit Document or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in the Credit Documents or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document furnished hereunder or thereunder.other writing (including any electronic message) believed by it to be genuine and to have been signed, sent or otherwise authenticated by a proper Person. An initial list of the
Appears in 1 contract
Samples: Credit Agreement (Time Warner Inc)
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf Documentary Agent for the Lenders under this Agreement. Neither of the LendersAgents shall have any duties or responsibilities with respect hereto except those expressly set forth herein or in the other Loan Documents. Each of the Lenders Lender and Issuing Bank and its successors and permitted assigns hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or holder and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent Issuing Banks hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders and Issuing Banks to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of with its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations agency hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so as directed by the Required Lenders. Subject ; and (c) to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right distribute to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an AgentIssuing Bank copies of all notices, financial statements and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed materials delivered by the Borrowers and (i) pursuant to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed as received by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunderAdministrative Agent.
Appears in 1 contract
Samples: And Consolidated Credit Agreement (Fm Properties Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent, London Agent and Chase is hereby appointed to act as CAF Agent, Tokyo Agent on behalf of the LendersLenders and the Issuing Bank. Each of the Lenders Lenders, each assignee of any Lender and the Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the other Agents are hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person other than the Company or an Affiliate of the Company in a transaction permitted by Section 6.04. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice 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 11.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 11.02) or in the absence of its or his or her own gross negligence or willful wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower (in which case such Agent shall give written notice to each other Lender), or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each of the Agents retiring Agent shall be discharged from its duties and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with obligations hereunder. After the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 11.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender hereby acknowledges that the Syndication Agent and each Documentation Agent has no rights, duties or liability hereunder other than in its capacity as a Lender.
Appears in 1 contract
Samples: Five Year Credit Agreement (Edwards Lifesciences Corp)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association Credit Suisse First Boston is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and the Issuing Bank (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by Holdings, the Borrower or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of its the foregoing, the Agents are hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents. Neither the Agents nor any of their respective directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents, instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to Holdings, the Borrowers Borrower or any other Loan Party on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Issuing Bank of any of its obligations hereunder or to the other Agent or any Lender or the Issuing Bank on account of the failure of or delay in performance or breach by any other LenderLender or the Issuing Bank or Holdings, the other Agent Borrower or any Borrower other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents neither Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor AgentAgent 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 any appointment as Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary of the Subsidiaries or other Affiliate thereof as if it were not an Agent. Each Lender agrees (ia) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding LoansLoans and available commitments hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers Borrower and (ib) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which that may be imposed on, incurred by or asserted against it in its capacity as Agent or any way of them relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the BorrowersBorrower or any other Loan Party; provided that no Lender shall be liable to an Agent or any Agent such other indemnified person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that have resulted from the gross negligence or willful wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Revolving Credit Lender agrees that any allocation made to reimburse each of the Issuing Bank and its directors, officers, employees and agents, in good faith by each case, to the Agents of expenses or other amounts referred same extent and subject to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding same limitations as provided above for all purposesthe Agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Lenders all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or 62 agreements. The Agents may deem and treat the Lender which makes any Loan as the holder None of the indebtedness resulting therefrom for all purposes hereof until it Agents, the Borrowers or CBS Operations shall have received notice from such be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, and no provision in the Loan Documents and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, given as provided hereinany Borrower, CBS Operations or any other Subsidiary, or any of the transfer thereoftheir respective Affiliates, by any party hereto. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. Each of the Agents The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint from the Lenders a successor AgentAdministrative 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 affiliate of any such bank, which successor shall be acceptable to CBS (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.5 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of CBS; provided provided, that no Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. Neither the Co-Documentation Agents, the Syndication Agent, the Joint Lead Arrangers nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (CBS Corp)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not bank serving as an 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 an Agent, and each of the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder. Each Lender agrees The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ia) the Administrative Agent shall not be subject to reimburse any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the AgentsAdministrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, on demand, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing by the amount of its pro rata share Required Lenders (based on its Commitment hereunder or, if so specified by this Agreement, all the Commitments shall have been terminatedLenders), and (c) except as expressly set forth herein, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which Administrative Agent shall not have been reimbursed any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Company that is communicated to or obtained by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such bank serving as Administrative Agent or any of its directorsAffiliates 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, officersif so specified by this Agreement, employees all the Lenders) or agentsin the absence of its own gross negligence or willful misconduct. Each Lender agrees that The Administrative Agent shall be deemed not to have knowledge of any allocation Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 connection with this Agreement or any related agreement other Credit Document, (ii) the contents of any certificate, report or other document delivered under any Credit Document or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in the Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document or any document furnished hereunder other agreement, instrument or thereunderdocument, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Time Warner Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints Citibank, N.A. as its administrative agent and authorizes the Agents Citibank, N.A. to take such actions on behalf its behalf, including execution of such Lender or holder the other Loan Documents, and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto, and Citibank, N.A. hereby accepts such appointment. Citibank, N.A. or an Affiliate or designee thereof shall also act as the Collateral Agent under the Loan Documents (for purposes of this Article VIII and Sections 9.03 and 2.14, the Administrative Agent and the Collateral Agent shall be collectively referred to as the “Agents”), and each of the Lenders hereby irrevocably appoints and authorizes Citibank, N.A. (and Citibank, N.A. hereby accepts such appointment) and each such Affiliate and designee to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to this Article VIII for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents as if set forth in full herein with respect thereto. The Administrative Agent is hereby expressly authorized by banks serving as the Agents hereunder shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the CAF same as though they were not an Agent, without hereby and such banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Irish Holdco or any Subsidiary or other Affiliate thereof as if they were not an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the respective Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders and as shall be necessary under the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereundercircumstances as provided in Section 9.02), and promptly (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to distribute disclose, and shall not be liable for the failure to each Lender and the CAF Agent disclose, any information relating to Irish Holdco or any of its proper share of each payment so received; (a) Subsidiaries that is communicated to give notice on behalf of each of the Lenders to the Borrowers of or obtained by any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No bank serving as an Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 or elsewhere in the Loan Documents) or in the absence of its or his or her own gross negligence or willful misconduct. The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the respective Agent by Irish Holdco, the Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained 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 (vi) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person Person. The Agents also may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lenderliability for relying thereon. The Agents may consult with legal counsel (who may be counsel for Irish Holdco, the Subsidiary Guarantors or the Borrower), independent accountants and other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel experts selected by it with respect to all matters arising hereunder them, and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by the respective Agent. The Agents and any such sub-agent may perform any and all their duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub- agent, and shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant to their respective activities in connection with the provisions syndication of this Agreement unless it shall be requested in writing to do so by the Required Lenderscredit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders Lenders, the Borrower and the Borrowersany Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor AgentAdministrative Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Administrative Agent, in its individual capacity and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights Borrower and powers as any other Lender and may exercise Additional Borrower to a successor Administrative Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower, any Additional Borrower and such successor. After the Administrative Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article VIII and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Administrative Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered 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. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Lenders, the Borrower and any Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed); provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent which shall not have been reimbursed 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 Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers and (i) to indemnify and hold harmless each of the Agents Borrower and any Additional Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent’s resignation hereunder, the provisions of its directors, officers, employees or agents, on demand, this Article VIII and Section 9.03 shall continue in effect for the amount benefit of such pro rata shareretiring Collateral Agent, from its sub-agents and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements their respective Related Parties in respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Collateral Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.. None of the Lenders, if any, identified in this Agreement as a Lead Arranger, a Co-Documentation Agent or a Co-Syndication 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 a Lead Arranger, Co-Documentation Agent and/or Co-Syndication Agent, as applicable, as it makes with respect to the Agents 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 Agents) authorized to act for, any other Lender. The Agents 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 their respective capacities, the Agents are “representatives” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Agents to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Agents) 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 Agents for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Agents are 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 Collateral Agent on behalf of the Secured Parties. The Lenders hereby authorize the Collateral Agent to release or, as applicable, subordinate any Lien granted to or held by the Collateral Agent upon any Collateral and to enter into non-disturbance or similar agreements, in each case, in connection with any Indebtedness incurred pursuant to Section 6.01(b)(xvi)(ii) and any other Indebtedness described in Section 9.13, in connection with dispositions of assets permitted under Section 6.02 or, other than with respect to lien release, in connection with licensing or sub-licensing transactions permitted under Sections 6.02 and 6.03, all as described further therein. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate particular types or items of Collateral and enter into non-disturbance or similar agreements pursuant hereto. The Administrative Agent and the Collateral Agent are authorized to enter into any Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, and extensions, restructuring, renewals, replacements of, such agreements) in connection with the incurrence by any Loan Party of any Permitted Junior Secured Refinancing Debt, Permitted Pari Passu Secured Refinancing Debt or Permitted Refinancing Indebtedness with respect thereto, or any other Indebtedness permitted by the terms of this Agreement to be secured by the Collateral on a pari passu or junior priority secured basis, in each case in order to permit such Indebtedness to be secured by a valid, perfected Lien (with such priority as may be designated by Irish Holdco or relevant Restricted Subsidiary, to the extent such priority is permitted by the Loan Documents), and the parties hereto acknowledge that each Intercreditor Agreement is (if entered into) binding upon
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Banks hereby irrevocably appoints Citibank, N.A. as its administrative agent and authorizes the Agents Citibank, N.A. to take such actions on behalf its behalf, including execution of such Lender or holder the other Loan Documents, and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto, and Citibank, N.A. xxxxxx accepts such appointment. The Citibank, N.A. or an Affiliate or designee thereof shall also act as the Collateral Agent under the Loan Documents (for purposes of this Article VIII and Sections 9.03 and 2.17, the Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentCollateral Agent shall be collectively referred to as the “Agents”), without hereby limiting any implied authority, (a) to receive on behalf and each of the Lenders and the CAF Issuing Banks hereby irrevocably appoints and authorizes Citibank, N.A. (and Citibank, N.A. hereby accepts such appointment) and each such Affiliate and designee to act as the agent of such Xxxxxx and Issuing Bank for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent all payments pursuant to this Article VIII for purposes of principal of and interest holding or enforcing any Lien on the Loans Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and all other amounts due remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents as if set forth in full herein with respect thereto. The banks serving as the Agents hereunder shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the CAF same as though they were not an Agent, and such banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Irish Holdco or any Subsidiary or other Affiliate thereof as if they were not an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) the Agents shall not be subject to give notice on behalf any fiduciary or other implied duties, regardless of each whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the respective 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 9.02), and (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to disclose, and shall not be liable for the Borrowers failure to disclose, any information relating to Irish Holdco or any of its Subsidiaries that is communicated to or obtained by any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No bank serving as an Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 or elsewhere in the Loan Documents) or in the absence of its or his or her own gross negligence or willful misconduct. The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the respective Agent by Irish Holdco, the Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained 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 (vi) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person Person. The Agents also may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lenderliability for relying thereon. The Agents may consult with legal counsel (who may be counsel for Irish Holdco, the Subsidiary Guarantors or the Borrower), independent accountants and other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel experts selected by it with respect to all matters arising hereunder them, and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by the respective Agent. The Agents and any such sub-agent may perform any and all their duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant to their respective activities in connection with the provisions syndication of this Agreement unless it shall be requested in writing to do so by the Required Lenderscredit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks, the Borrower and any Additional Borrower. Any such resignation by the Administrative Agent hereunder shall also constitute its resignation as an Issuing Bank and the BorrowersSwingline Lender, as applicable, in which case the resigning Administrative Agent (x) shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of its rights as Issuing Bank or Swingline Lender, as the case may be, 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 resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders 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 Borrower and any Additional Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower, any Additional Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article VIII and Section 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. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Lenders, the Borrower and any Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed); provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor AgentCollateral Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Collateral Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Collateral Agent, in its individual capacity and not as an the retiring Collateral Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights Borrower and powers as any other Lender and may exercise Additional Borrower to a successor Collateral Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article VIII and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Collateral Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Collateral Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Horizon Therapeutics Public LTD Co)
The Agents. In order to expedite the transactions contemplated by this AgreementCitibank, Chase Bank of Texas, National Association N.A. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and Citibank, N.A. accepts such appointments. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes the Agents Administrative Agent and the Collateral Agent to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto; provided that the Administrative Agent will 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. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and to promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent it has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by Borrower pursuant to this Agreement as received by it. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent 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; provided that if the retiring Agent shall notify Borrower, the Lenders and the Issuing Bank that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in case of any collateral security held by the retiring Agent on behalf of the Lenders or the Issuing Bank under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender and each Issuing Bank directly, until such time as the Requisite Lenders appoint a successor Agent as provided for above in this Section. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Anything herein to the contrary notwithstanding, if at any time the Requisite Lenders determine that the Person serving as Administrative Agent is (without taking into account any provision in the definition of “Defaulting Lender” requiring notice from the Administrative Agent or any other party) a Defaulting Lender agrees pursuant to clause (v) of the definition thereof, the Requisite Lenders (determined after giving effect to Section 9.08) may by notice to Borrower and such Person remove such Person as Administrative Agent and appoint a replacement Administrative Agent hereunder. Such removal will, to the fullest extent permitted by applicable law, be effective on the earlier of (i) the date a replacement Administrative Agent is appointed and (ii) the date 30 days after the giving of such notice by the Requisite Lenders (regardless of whether a replacement Administrative Agent has been appointed). No Person that obtains the benefits of any Collateral pursuant to reimburse a Hedging Agreement and/or Secured Cash Management Agreement shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Agents, on demandCollateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in the amount of its pro rata share (based on its Commitment hereunder orsuch case, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement only to the extent expressly provided in the same Loan Documents. Notwithstanding any other provision hereof, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been reimbursed by made with respect to, Secured Obligations arising under Secured Cash Management Agreements or Hedging Agreements unless the Borrowers; provided that no Administrative Agent has received written notice of such Secured Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Person. So long as any Lender shall is a Defaulting Lender, such Lender will not be liable a Cash Management Bank or Hedge Bank with respect to any Agent for any portion of Secured Cash Management Agreement or Hedging Agreement entered into while such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposeswas a Defaulting Lender. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, none of CGMI, MLPFS and Barclays, as Lead Arrangers, nor BANA and Barclays, as Co-Syndication Agents, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the IRS or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold any tax from any amounts paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any interest, additions to tax and penalties, and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this paragraph. The agreements in this paragraph shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other obligations.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Canadian Administrative Agent on behalf of the Lenders. Each of the Lenders Lenders, each assignee of any Lender hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the Canadian Administrative Agent are hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required other Loan Party pursuant to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or the other instruments or agreementsLoan Documents as received by the Administrative Agent. The Agents may deem and treat Without limiting the Lender which makes any Loan as the holder generality of the indebtedness resulting therefrom for foregoing, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all purposes hereof until it shall have received notice from the capital stock of such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto Guarantor shall be binding on all sold, transferred or otherwise disposed of to a Person other than the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 Company or an Affiliate of the Company in a transaction not prohibited by this Agreement. It is understood and agreed that the use of the term “agent” herein or in any such bank. Upon other Loan Documents (or any other similar term) with reference to the acceptance Administrative Agent and the Canadian Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any appointment applicable law. Instead such term is used as Agent hereunder by a successor bankmatter of market custom, such successor and is intended to create or reflect only an administrative relationship between contracting parties. With respect to the Loans made by it hereunderunder this Agreement, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrowers Company or any Subsidiary or other Affiliate thereof as if it were not an Agent under the Loan Documents and without any duty to account therefor to the Lenders. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents, and their duties under the Loan Documents shall be administrative in nature. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that such Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence, bad faith or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower, and no Agent shall 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 thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein 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 such Agent. Each 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, sent or otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and in good faith 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, each Agent may presume that such condition is satisfactory to such Lender agrees unless such Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Each Agent may consult with legal counsel (iwho 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. Each 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 such Agent. Each 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 this Article shall apply to any such sub-agent and to the Related Parties of each 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 Agent. In taking any discretionary action hereunder, or in determining whether any provision hereof is applicable to any event, transaction or circumstance, the Administrative Agent may, in its discretion, but shall not be required (unless required by any other express provision hereof) to, communicate such proposed action or determination to reimburse the AgentsLenders prior to taking or making the same, on demandand shall be entitled (subject to any otherwise applicable requirement of Section 10.02(b)), in the amount absence of its pro rata share any contrary communication received from any Lender within a reasonable period of time specified in such communication from the Administrative Agent, to assume that such proposed action or determination is satisfactory to such Lender. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, any Agent may resign at any time by notifying the Lenders and the Company. Upon any such resignation, the Company shall have the right, with the consent of the Required Lenders (based on its Commitment hereunder not to be unreasonably withheld or delayed), to appoint a successor; provided, that if a Default has occurred and is continuing, the Required Lenders, and not the Company, shall have the right, in consultation with the Company, to appoint such successor. If no successor shall have been so appointed by the Company (or, if applicable, the Commitments Required Lenders) and shall have been terminated, accepted such appointment within 30 days after the amount retiring Agent gives notice of its outstanding Loans) of any expenses incurred for resignation, then the benefit of the Lenders in its role as Agentretiring Agent may (but shall not be obligated to), including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, appoint a successor Agent which shall not have been reimbursed be a bank with an office in New York, New York or Toronto or London, as applicable, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and (i) such successor. After the Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring 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 Agent. To the extent required by any applicable law, each Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.16, each Lender shall indemnify and hold harmless each of the Agents Agent against, and any of its directorsshall make payable in respect thereof within 10 days after written demand therefor, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, Taxes and any and all related losses, damagesclaims, penaltiesliabilities and expenses (including fees, actions, judgments, suits, costs, expenses or charges and disbursements of any kind or nature whatsoever which may be imposed on, counsel for such Agent) incurred by or asserted against it in such Agent by the United States Internal Revenue Service or any way relating other Governmental Authority as a result of the failure of such Agent to properly withhold Tax from amounts paid to or arising out for the account of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no such Lender shall be liable to any Agent for any portion reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify such Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective) unless such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from failure was due to the gross negligence or willful misconduct of such Agent. A certificate as to the amount of such payment or liability delivered to any Lender by such Agent or any of its directors, officers, employees or agentsshall be conclusive absent manifest error. Each Lender agrees that hereby authorizes each Agent to set off and apply any allocation made in good faith by the Agents of expenses and all amounts at any time owing to such Lender under this Agreement or any other amounts referred to Loan Document against any amount due such Agent under this Article. The agreements in this paragraph between this Agreement Article shall survive the resignation and/or replacement of each Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the Facility A Credit Agreement shall be conclusive and binding for repayment, satisfaction or discharge of all purposesother Obligations. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Anything herein to the contrary notwithstanding, none of the Arrangers shall have any duties or obligations under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as an Agent or a Lender hereunder. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, each Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether such Agent shall have made any demand on the applicable Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (a) to file and prove a claim for the 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 Agents (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Agents and their respective agents and counsel and all other amounts due the Lenders and the Agents) allowed in such judicial proceeding and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the applicable Agent and, in the event that an Agent shall consent to the making of such payments directly to the Lenders, to pay to such Agent any amount due for the reasonable compensation, expenses, disbursements and advances of such Agent and its agents and counsel, and any other amounts due such Agent. Nothing herein shall be deemed to give the Agents the right to vote the claim of any Lender in any such proceeding pursuant to such Debtor Relief Law.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and the Issuing Bank and BNY is hereby appointed as Documentation Agent on behalf of the Lenders (the Administrative Agent, the Collateral Agent and the Documentation Agent are referred to collectively as the "Agents"). Each of the Lenders and each assignee of any such Lender, hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank on the due date therefor its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute promptly to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents. Neither the Agents nor any of its their respective directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, in the case of any matter requiring the approval of all the Lenders, in accordance with written instructions signed by all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person or personsPersons. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower or any other Loan Party on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Issuing Bank of any of its obligations hereunder or to the other Agent or any Lender or the Issuing Bank on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent Issuing Bank or the Borrower or any Borrower other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with reasonable care with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor, which successor Agent shall be reasonably acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunder.100
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Agent on behalf of the LendersLenders and the Fronting Bank. Each of the Lenders and the Fronting Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and the Fronting Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders Lenders, the Fronting Bank and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders Lenders, the Fronting Bank and the CAF Agent all payments of principal of and interest on the Loans Outstanding Credits and all other amounts due to the Lenders Lenders, the Fronting Bank and the CAF Agent hereunder, and promptly to distribute to each Lender Lender, the Fronting Bank and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders and the Fronting Bank to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender and the Fronting Bank copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by the Administrative Agent. No Agent or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders or the Fronting Bank for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender or the Fronting Bank which makes any Loan Extension of Credit as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderLender or the Fronting Bank (as the case may be), given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the LendersLenders and the Fronting Bank. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Fronting Bank of any of its obligations hereunder or to the other Agent or any Lender or the Fronting Bank on account of the failure of or delay in performance or breach by any other LenderLender or the Fronting Bank , the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders and the Fronting Bank hereby acknowledge that neither of the Agents shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders Lenders, the Fronting Bank and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Fronting Bank, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After any Agent's resignation hereunder, the provisions of this Article and Section 8.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. With respect to the Loans Extensions of Credit made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding LoansOutstanding Credits) of any expenses incurred for the benefit of the Lenders or the Fronting Bank in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the LendersLenders or the Fronting Bank, which shall not have been reimbursed by the Borrowers and (iii) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender and the Fronting Bank agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender and the Fronting Bank acknowledges that it has, independently and without reliance upon the Agents or any other Lender or the Fronting Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the Fronting Bank also acknowledges that it will, independently and without reliance upon the Agents or any other Lender or the Fronting Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder. Neither Bank of America, N.A. nor Citibank, N.A. shall, by virtue of its designation as "Co-Syndication Agent", nor shall The Bank of New York, by virtue of its designation as "Documentation Agent", have any duties, liabilities, obligations or responsibilities under this Agreement other than as a Lender hereunder.
Appears in 1 contract
Samples: Conformed Copy (Txu Electric Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Royal Bank of Texas, National Association Canada is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF Agenteach Secured Party, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Secured Parties all payments of principal of and interest on the Loans Obligations, all payments and all other amounts due to the Lenders and the CAF Agent Secured Parties hereunder, and promptly to distribute to each Lender and the CAF Agent Secured Party its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by Borrower pursuant to this Agreement as received by such Agent; (d) to enter into the Security Documents on behalf of the Secured Parties; and (e) to claim all Obligations owed to any Secured Party against Borrower in its own name for the purpose of any Security Documents. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither RBC Capital Markets, as Lead Arranger, nor General Electric Capital Corporation, as Syndication Agent, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and Issuing Banks hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms hereof and provisions hereofof the other Credit Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby bank or banks serving as the Agents hereunder shall have the same rights and powers in their capacity as Lenders or Issuing Banks as any other Lender or Issuing Bank and may exercise the same as though they were not Agents, and such bank or banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if they were not Agents hereunder. The Agents shall not have any duties or obligations except those expressly authorized by set forth herein. Without limiting the Lenders and generality of the CAF Agent, without hereby limiting any implied authority, foregoing (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Lenders Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the CAF Agent all payments of principal of Agents are required to exercise in writing by the Majority Lenders, and interest on (c) except as expressly set forth herein, the Loans Agents shall not have any duty to disclose, and all other amounts due shall not be liable for the failure to disclose, any information communicated to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders Agents by or relating to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Borrower or any of its directors, officers, employees or agents Subsidiary. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for its the Majority Lenders or his the Lenders, as the case may be, or her in the absence of their own gross negligence or willful misconduct. In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agents by the Borrower or a Lender or Issuing Bank, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of this Agreement or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere herein or therein, other than to confirm receipt of items expressly required to be delivered to the Agents. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person Person. The Agents also may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the The Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it them with respect to all matters arising hereunder reasonable care, and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by the Agents. The Agents and any such sub-agent may perform any and all their duties and exercise their rights and powers through their respective Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Affiliates of the Agents shall be under no duty to take and any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenderssuch sub-agent. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Majority Lenders shall have the right to appoint a successor Agent acceptable to with the BorrowersBorrower’s written consent (which shall not be unreasonably withheld or delayed and shall not be required from the Borrower if an Event of Default has occurred and is continuing). If no successor shall have been so appointed by the Required Majority Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, with the Borrower’s written consent (which shall not be unreasonably withheld or delayed and shall not be required if an Event of Default has occurred and is continuing), appoint a successor AgentAgent which shall be a bank or an Affiliate thereof, having in each case with a combined capital and surplus net worth of at least $500,000,000 or 1,000,000,000 and an Affiliate of any such bankoffice in New York, New York. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of the Agents this Article and their Affiliates may accept deposits from, lend money Section 9.03 shall continue in effect for its benefit in respect of any actions taken or omitted to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof be taken by it while it was acting as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender Issuing Bank acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents or any other Lender or Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding any other provision contained herein, (a) each Lender and each Issuing Bank acknowledges that the Administrative Agent is not acting as an agent of the Borrower and that the Borrower will not be responsible for acts or failures to act on the part of the Administrative Agent and (b) none of the Syndication Agents, Documentation Agents, Senior Managing Agents or Managing Agents shall, in its capacity as such, have any responsibilities, fiduciary or otherwise, to the Borrower, to any Lender or to any other Person under this Agreement or the other Credit Documents. Without prejudice to the provisions of this Article VIII, each Lender and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) to act as the Person holding the power of attorney (in such capacity, the “fondé de pouvoir”) of the Lenders and Issuing Banks as contemplated under Article 2692 of the Civil Code of Quebec, and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties which are conferred upon the fondé de pouvoir under any hypothec. Moreover, without prejudice to such appointment and authorization to act as the Person holding the power of attorney as aforesaid, each Lender and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) (in such capacity, the “Custodian”) to act as agent and custodian for and on behalf of the Lenders and Issuing Banks to hold and to be the sole registered holder of any debenture which may be issued under any hypothec, the whole notwithstanding Section 32 of the Act Respecting the Special Powers of Legal Persons (Quebec) or any other applicable law. In this respect, (i) the Custodian shall keep a record indicating the names and addresses of, and the pro rata portion of the obligations and indebtedness secured by any pledge of any such debenture and owing to each Lender and Issuing Bank and (ii) each Lender and Issuing Bank will be entitled to the benefits of any charged property covered by any hypothec and will participate in the proceeds of realization of any such charged property, the whole in accordance with the terms hereof. Each of the fondé de pouvoir and the Custodian shall (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to fondé de pouvoir and the Custodian (as applicable) with respect to the charged property under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise, (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Lenders or the Issuing Banks, and (c) be entitled to delegate from time to time any of its powers or duties under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise and on such terms and conditions as it may determine from time to time. Any Person who becomes a Lender or an Issuing Bank shall be deemed to have consented to and confirmed: (y) the fondé de pouvoir as the Person holding the power of attorney as aforesaid and to have ratified, as of the date it becomes a Lender or Issuing Bank, all actions taken by the fondé de pouvoir in such capacity, and (z) the Custodian as the agent and custodian as aforesaid and to have ratified, as of the date it becomes a Lender or Issuing Bank, all actions taken by the Custodian in such capacity.
Appears in 1 contract
Samples: Assignment and Assumption (Goodyear Tire & Rubber Co /Oh/)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase Agent, CMIL is hereby appointed to act as CAF London Agent, and such party as may be named pursuant to Section 9.16 is hereby appointed to act as Australian Agent, on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative With respect to the Loans made by it hereunder, each Agent is hereby expressly authorized by in its individual capacity and not as Agent shall have the Lenders same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the CAF Agents and their Affiliates in their respective individual capacities may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent, without hereby . The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) no Agent shall be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such 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 9.02), and (c) except as expressly set forth in the CAF Loan Documents, no Agent all payments of principal of shall have any duty to disclose, and interest on no Agent shall be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and Company or any of its Subsidiaries that is communicated to or obtained by the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its or his or her own gross negligence or willful wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower or a Lender, or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with the Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder genuineness of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from Loan Documents or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein or in any other Loan Document, other than to confirm receipt of items expressly required to be delivered to such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it in good faith to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to preceding paragraphs and the provisions of this Agreement unless it Section 9.03 shall be requested apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Company to a successor Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Co-Syndication Agents or Co-Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Valspar Corp)
The Agents. In order to expedite Each Lender hereby irrevocably designates and appoints the transactions contemplated by Agents as the agents of such Lender under this AgreementAgreement and the other Loan Documents, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF each Lender irrevocably authorizes each Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents in such capacity, to take such actions action on its behalf under the provisions of such Lender or holder this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are specifically expressly delegated to the Agents such Agent by the terms of this Agreement and provisions hereofthe other Loan Documents, together with such actions and other powers as are reasonably incidental thereto. Each Lender that holds Term B Loans or has Term B Commitments and each Qualified Counterparty (in each case, in its capacity as such) hereby irrevocably designates and appoints the Collateral Agent as an agent of such Person under this Agreement and each other Loan Document to which the Collateral Agent is a party. In addition, without hereby limiting any implied authority, each Lender hereby expressly authorizes and directs the Collateral Agent to enter into the Intercreditor and Subordination Agreement and each other Loan Document to which it is a party as its agent. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful 138 misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. The Collateral Agent hereby agrees that it holds and will hold all of its right, title and interest in, to and under the Security Documents and the Collateral granted to the Collateral Agent thereunder whether now existing or hereafter arising (all such right, title and interest being hereinafter referred to as the "Collateral Estate") under and subject to the conditions set forth in this Agreement; and the Collateral Agent further agrees that it will hold such Collateral Estate for the benefit of the Secured Parties, for the enforcement of the payment of all Obligations (subject to the limitations and priorities set forth herein and in the respective Security Documents) and as security for the performance of and compliance with the covenants and conditions of this Agreement and each of the Security Documents. All of the powers, remedies and rights of the Collateral Agent as set forth in this Agreement may be exercised by the Collateral Agent in respect of any Security Document as though set forth in full therein and all of the powers, remedies and rights of the Collateral Agent as set forth in any Security Document may be exercised from time to time as herein and therein provided. Subject to the appointment and acceptance of a successor Agent as provided belowbelow and subject to the next succeeding paragraph with respect to the Collateral Agent, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If 139 no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor With respect shall succeed to and become vested with all the Loans made by it rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent's resignation hereunder, each the provisions of the Agents, this Article and Section 10.05 shall continue in effect for its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage benefit in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) respect of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that while it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information was acting 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 Agents 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 or any related agreement or any document furnished hereunder or thereunderan Agent.
Appears in 1 contract
Samples: Credit Agreement (Spirit AeroSystems Holdings, Inc.)
The Agents. In order (a) For convenience of administration and to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent, FTX Collateral Agent and FRP Collateral Agent for the Banks under this Agreement and the Security Agreements, and Chase is hereby appointed to act as CAF Agent, on behalf the Documentary Agent for the Banks under this Agreement. None of the LendersAgents shall have any duties or responsibilities with respect hereto except those expressly set forth herein or in the other Loan Documents. Each Bank, and each subsequent holder of the Lenders any Promissory Note by its acceptance thereof, hereby irrevocably appoints and expressly authorizes the Agents Agents, without hereby limiting any implied authority, to take such actions action as the Agents may deem appropriate on its behalf of such Lender or holder and to exercise such powers under this Agreement as are specifically delegated to the Agents such Person by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentBanks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent Banks hereunder, and promptly to distribute to each Lender and the CAF Agent Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders Banks to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder or any as directed by the Required Banks; and (c) to distribute to each Bank copies of its directorsall notices, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document financial statements and other materials delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any pursuant to this Agreement as received by the Administrative Agent. Without limiting the generality of the termsforegoing, conditions, covenants or agreements contained in this Agreement. The the Collateral Agents shall not be responsible are hereby expressly authorized to execute any and all documents (including releases) with respect to the Lenders for collateral under the due executionSecurity Agreements and the rights of the secured parties with respect thereto, genuineness, validity, enforceability or effectiveness as contemplated by and in accordance with the provisions of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the LendersSecurity Agreements. Each of the Agent and the Collateral Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or may exercise any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents their respective agents, officers or employees employees. In addition, each Bank hereby irrevocably authorizes and shall be entitled directs the Collateral Agents to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent mayenter, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of them, into the Agents, FTX Intercreditor Agreement (in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each case of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an FTX Collateral Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it hasSecurity Agreements, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision contemplated pursuant to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Resource Partners Limited Partnership)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association JPMCB is hereby appointed to act as Administrative Agent on behalf of the Lenders and Chase Issuing Banks, JPME is hereby appointed to act as CAF AgentLondon Agent on behalf of the Lenders, JPMorgan Chase Bank, N.A. Toronto Branch is hereby appointed to act as Canadian Agent on behalf of the Lenders and JPMA is hereby appointed to act as Australian Agent on behalf of the Lenders. Each of the Lenders and each Issuing Bank hereby irrevocably authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Any bank serving as Agent is hereby expressly authorized by hereunder shall have the Lenders same rights and powers in its capacity as a Lender as any other Lender and may exercise the CAF same as though it were not such Agent, without hereby 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 such Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) no Agent shall be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such 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 CAF Loan Documents, no Agent all payments of principal of shall have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and Company, any Borrower or any Subsidiary that is communicated to or obtained by the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No bank serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for 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 or his or her own bad faith, gross negligence or willful wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower or a Lender, or and no such Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Such 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 Lenders hereby acknowledge that exculpatory provisions of the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to preceding paragraphs and the provisions of this Agreement unless it Section 10.03 shall be requested apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right (in consultation with, and with the consent of, the Company, which shall not be unreasonably withheld) to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent maymay (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 Agent shall so request, designate and approve a successor Agent) on behalf of the Lenders, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Company to a successor Agent shall be the same as though it were not those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 10.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or Agreement, any other Loan Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agent or Documentation Agent in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Kellogg Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each bank serving as an 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 an Agent, and such bank and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Company or Affiliate thereof as if it were not an Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent is hereby shall not have any duties or obligations except those expressly authorized by set forth herein and in the Lenders and other Credit Documents. Without limiting the CAF Agent, without hereby limiting any implied authoritygenerality of the foregoing, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has actual knowledge acquired occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise in connection No writing by the Required Lenders (or, if so specified by this Agreement, all the Lenders) and (c) except as expressly set forth herein and in the other Credit Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Company or any of its Affiliates that is communicated to or obtained by the bank serving as Administrative Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Administrative Agent shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or, if so specified by this Agreement, all the Lenders, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Article VII and Section 9.02) or in the absence of its or his or her own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower, a Lender or an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered under any Credit Document or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in the Credit Documents or the occurrence of any Default, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of any Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Administrative Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected 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) believed by it to be genuine and to have been signed, sent or otherwise authenticated by a proper Person. An initial list of the proper Persons with respect to the Borrower appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). 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 so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all matters arising material respects (it being understood that oral notices of borrowing will be confirmed in writing by the Borrower in accordance with Section 2.03). 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 an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by the Agents Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it the Administrative Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication 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 belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Borrower, to appoint a successor Agent which, so long as no Event of Default is continuing, shall be reasonably acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor AgentAdministrative Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring (or retired) Administrative Agent, in its individual capacity and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder or under the same rights and powers as any other Lender and may exercise Credit Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower and such successor; provided that the predecessor Administrative Agent shall pay the unearned portion of any fees paid in advance to either the successor Administrative Agent or the Borrower. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and each their respective Related Parties in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. Any resignation by Bank of America, N.A. as Administrative Agent pursuant to this Article VIII shall also constitute its resignation as an Issuing Bank and Swingline Lender. Upon the acceptance of a successor’s appointment as Issuing Bank or Swingline Lender, (a) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Credit Documents, and (b) 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 Agents retiring Issuing Bank with respect to such Letters of Credit. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their Affiliates may accept deposits fromCommitments in effect (or at any time after the Commitments have terminated, lend money to their Revolving Credit Exposures) on the date on which indemnification is sought under this Article VIII (or, if indemnification is sought after the date upon which the Commitments shall have terminated and generally engage the Loans shall have been paid in any kind of business full, ratably in accordance with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees their Commitments (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminatedterminated earlier, the amount of its outstanding Loanstheir Revolving Credit Exposures) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) immediately prior to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata sharedate), from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or nature whatsoever which may after the payment of the Loans) be imposed on, incurred by or asserted against it such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of this Agreement the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by it such Agent under this Agreement to or in connection with any of the extent the same shall not have been reimbursed by the Borrowersforegoing; provided that no Lender shall be liable to any Agent for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the such Agent’s gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agentsmisconduct. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to The agreements in this paragraph between this Agreement shall survive the payment of the Loans and the Facility A Credit Agreement shall be conclusive and binding for all purposesother amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or Agreement, any related agreement or any document furnished hereunder or thereunder. The Co-Syndication Agents and Co-Documentation Agents shall not have any duties or responsibilities under any Credit Document in their capacity as such.
Appears in 1 contract
The Agents. In order to expedite As used in this Section 10, the transactions contemplated by this Agreementterm “Agents” or “Agent” shall mean each of the Agents as well as the Administrative Agent, Chase Bank acting in such respective capacities. The rights and relationships of Texas, National Association is hereby appointed to act as Administrative each Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated Banks shall be subject to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental theretoset forth in this Section 10. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice take such action on behalf of each of the Lenders Banks and to exercise all such powers as are hereunder and in related documents delegated to the Borrowers of any Event of Default of which Administrative Agent, together with such powers as are reasonably incident thereto, provided that no duties or responsibilities not expressly assumed herein or therein shall be implied to have been assumed by the Administrative Agent. The relationship between the Administrative Agent has actual knowledge acquired and each of the Banks is that of an independent contractor. The use of the term “Administrative Agent” is for convenience only and is used to describe, as a form of convention, the independent contractual relationship between the Administrative Agent and each of the Banks. Nothing contained in connection No this Agreement shall be construed to create an agency, trust or other fiduciary relationship between the Administrative Agent or and any of the Banks. The Administrative Agent may exercise its directors, officers, powers and execute its duties by or through employees or agents and shall be entitled to take, and to rely on, advice of counsel concerning all matters pertaining to its rights and duties under this Agreement. The Administrative Agent may utilize the services of such Persons as the Administrative Agent in its sole discretion may reasonably determine, and all reasonable fees and expenses of such Persons shall be paid by the Borrower. None of the Agents nor any of their respective shareholders, directors, officers or employees nor any other Person assisting them in their duties nor any agent or employee thereof, shall be liable as such for any waiver, consent or approval given or any action taken taken, or omitted to be taken, in good faith by any of it or them except for its or his or her own gross negligence or willful misconducthereunder, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required responsible for the consequences of any oversight or error of judgment whatsoever, except that each Agent or such other Person, as the case may be, may be liable for losses due to its willful misconduct or gross negligence. The Agents shall not be responsible for the execution or validity or enforceability of this Agreement or any instrument at any time constituting, or intended to constitute, collateral security for the Obligations, or for the value of any such collateral security or for the validity, enforceability or collectability of any such amounts owing with respect hereto, or for any recitals or statements, warranties or representations herein or made in any certificate or instrument hereafter furnished by or on behalf of the Borrower, or be bound to ascertain or inquire as to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained herein or in this Agreement. The Agents shall not be responsible any instrument at any time constituting, or intended to the Lenders constitute, collateral security for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or personsObligations. No Agent shall be bound to ascertain whether any notice, consent, waiver or request delivered to it by the Borrower or any Bank or its assignee shall have been duly authorized or is true, accurate and complete. No Agent has made or now makes any representations or warranties, express or implied, nor does either Agent assume any liability to the Banks with respect to the creditworthiness or financial condition of the Borrower or any of its directorsSubsidiaries. Except for notices, officersreports and other documents and information expressly required to be furnished to the Banks by the Administrative Agent hereunder, employees or agents no Agent shall have any duty or responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or provide any Lender of Bank with any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary credit or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of information concerning any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever Person which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to come into the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct possession of such Agent or any of its directors, officers, employees or agentsaffiliates. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender Bank acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender Bank, and based on upon such information and 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 If in the opinion of the Administrative Agent the distribution of any amount received in its capacity as Administrative Agent hereunder might involve it willin a violation of law, independently and without reliance upon the Agents or any other Lender and based on it may refrain from making such documents and information as it shall from time to time deem appropriate, continue distribution until its right to make such distribution shall have been adjudicated by a court of competent jurisdiction. If a court of competent jurisdiction shall adjudge that any amount received and distributed by the Administrative Agent is to be repaid, each Person to whom any such distribution shall have been made shall either repay to the Administrative Agent its own decisions proportionate share of the amount so adjudged to be repaid or shall pay over the same in taking such manner and to such Persons as shall be determined by such court. With respect to obligations of the Borrower hereunder, a payment to the Administrative Agent for the account of the Banks shall be deemed to be a payment to the Banks. The Banks agree, ratably in accordance with their respective Commitment Percentages, to indemnify and hold harmless the Administrative Agent and its affiliates from and against any and all claims, actions and suits (whether groundless or otherwise), losses, damages, costs, expenses (including any expenses for which the Administrative Agent and its affiliates has not taking action under been reimbursed by the Borrower as required by Section 11 hereof), and liabilities of every nature and character arising out of or based upon related to this Agreement or the transactions contemplated or evidenced hereby, or the Administrative Agent’s or its affiliates’ actions taken hereunder, except to the extent that any related agreement of the same shall be directly caused by the Administrative Agent’s or its affiliates’ willful misconduct or gross negligence. In their respective individual capacities, each of the Banks serving as an Agent shall have the same obligations and the same rights, powers and privileges with respect to their Commitments and the Loans made by them hereunder as they would have were they not also acting as Agents. None of the Agents, other than the Administrative Agent, shall have any document furnished hereunder right, power, obligation, liability, responsibility or thereunder.duty under this Agreement in such capacity, other than those applicable to all Banks as Banks. Without limiting any of the foregoing provisions of this Section 10, the Banks and each Agent hereby agree that the Administrative Agent shall not be obliged to make available to any Person any sum which the Administrative Agent is expecting to receive for the account of that Person until the Administrative Agent has determined that it has received that sum. The Administrative Agent may, however, disburse funds prior to determining that the sums which the Administrative Agent expects to receive have been finally and unconditionally paid to the Administrative Agent, if the Administrative Agent wishes to do so. If and to the extent that the Administrative Agent does disburse funds and it later becomes apparent that the Administrative Agent did not then receive a payment in an amount equal to the sum paid out, then any Person to whom the Administrative Agent made the funds available shall, on demand from the Administrative Agent:
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Lenders all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder None of the indebtedness resulting therefrom for all purposes hereof until it Agents, the Borrowers or Viacom International shall have received notice from such be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, and no provision in the Loan Documents and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, given as provided hereinany Borrower, Viacom International or any other Subsidiary, or any of the transfer thereoftheir respective Affiliates, by any party hereto. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. Each of the Agents The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be NY cbsfive-year_amdt2_Part_003.htm i genuine and correct and to have been signed or sent by the proper person Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint from the Lenders a successor AgentAdministrative 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 affiliate of any such bank, which successor shall be acceptable to CBS (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.5 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or NY cbsfive-year_amdt2_Part_003.htm i the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of CBS; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. Neither the Co-Documentation Agents, the Syndication Agent, the Joint Lead Arrangers, the Sole Bookrunner nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association CSFB is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and the Issuing Bank (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders Lenders, each assignee of any such Lender and the Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company and PHI or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to release any Guarantor from its obligations hereunder and under the other Loan Documents and release the Security Interest in any Collateral, in the event that all the capital stock of the Guarantor, or such Collateral, shall be sold, transferred or otherwise disposed of to a person that is not an Affiliate of the Borrower in a transaction permitted by Section 6.05 hereof, and to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, in each case as contemplated by and in accordance with the provisions of this Agreement and the other Loan Documents. Neither the Agents nor any of their respective directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers Borrower or any other Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents, instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers Company or any other Loan Party on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Issuing Bank of any of its obligations hereunder or to the other Agent or any Lender or the Issuing Bank on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent Issuing Bank or the Company or any Borrower other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled enti tled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders and the BorrowersBorrower in writing. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor AgentAgent 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 any appointment as Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 10.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Company or any Subsidiary of the Subsidiaries or other Affiliate thereof as if it were not an Agent. Each Lender agrees (ia) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding LoansLoans and available commitments hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers Borrower and (ib) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the BorrowersBorrower or any other Loan Party; provided that no Lender shall be liable to an Agent or any Agent such other indemnified person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Revolving Credit Lender agrees that any allocation made to reimburse each of the Issuing Bank and its directors, officers, employees and agents, in good faith by each case, to the Agents of expenses or other amounts referred same extent and subject to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding same limitations as provided above for all purposesthe Agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender, hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by such Agent. Neither Agent or nor any of its directors, officers, employees or agents Related Parties shall be liable to the Lenders as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Neither any Agent or nor any of its directors, officers, employees or agents Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder 112 and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents neither Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent 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 any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers CCSC or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents either 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 Agents either 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Each Lender hereby authorizes the Administrative Agent to enter into the Intercreditor Agreement on behalf of such Lender and to exercise its rights and perform its obligations thereunder.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent, London Agent and Chase is hereby appointed to act as CAF Agent, Canadian Agent on behalf of the Lenders. Each of the Lenders and each assignee of any Lender hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the other Agents are hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any of the Borrowers or any of their Subsidiaries or other Affiliates thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice 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, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to any of the Borrowers or any of their Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for 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 or his or her own gross negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower (in which case such Agent shall give written notice to each other Lender), or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, with the consent of the Company (not to be unreasonably withheld and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor successor. In addition, if any Agent acceptable is a Defaulting Lender due to it having had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or custodian appointed for it, the Required Lenders shall have the right, by notice in writing to the BorrowersCompany and such Agent, to remove such Agent in its capacity as such and, with the consent of the Company (not to be unreasonably withheld and except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor. If (a) no successor to a retiring Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bankbank or (b) no successor to a removed Agent shall have been so appointed and shall have accepted such appointment within 30 days following the issuance of a notice of removal, the removal shall become effective on such 30th day and on such date the Required Lenders shall succeed as Agent to such removed Agent. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it rights, powers, privileges and duties of the retiring or removed Agent, as the case may be, and such retiring or removed Agent shall be discharged from its duties and obligations hereunder. After the Agent’s resignation or removal, as the case may be, hereunder, each the provisions of this Article and Section 10.03 shall continue in effect for the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an benefit of such retiring or removed Agent, and each of as the Agents case may be. its sub-agents and their Affiliates may accept deposits from, lend money respective Related Parties in respect of any actions taken or omitted to and generally engage in be taken by any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof them while it was acting as if it were not an Agent. Each Lender agrees (ia) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding LoansLoans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers Company or any other Borrower and (ib) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agentsRelated Parties, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the BorrowersCompany or any other Borrower; provided that no Lender shall be liable to an Agent or any Agent such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are determined to have resulted from the gross negligence or willful misconduct of such Agent Agent, and any of its Related Parties or any of its their respective directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders identified on the facing page or signature pages of this Agreement or elsewhere herein as a “syndication agent” or “documentation agent” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Except with respect to the consent rights of the Borrower relating to a successor agent as set forth below, the provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower shall not have rights as a third party beneficiary of any of such provisions. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent is hereby shall not have any duties or obligations except those expressly authorized by set forth herein. Without limiting the Lenders and generality of the CAF Agent, without hereby limiting any implied authorityforegoing, (a) the Administrative Agent shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders and as shall be necessary under the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereundercircumstances as provided in Section 9.02), and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ac) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which except as expressly set forth herein, the Administrative Agent has actual knowledge acquired in connection No shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Administrative Agent shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the absence of its or his or her own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, or and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or the occurrence of any Default, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or any other instruments agreement, instrument or agreementsdocument, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it Administrative Agent shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person. The Administrative Agent also may rely upon any statement made to it orally or personsby telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. No Agent or In determining compliance with any of its directors, officers, employees or agents shall have any responsibility condition hereunder to the Borrowers on account making of the failure of or delay in performance or breach a Loan that by the other Agent or any Lender of any of its obligations hereunder or terms must be fulfilled to the other Agent or any Lender on account satisfaction of the failure of or delay in performance or breach by any other a Lender, the other Administrative Agent or any Borrower 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 any of their respective obligations hereunder or in connection herewithsuch Loan. Each of the Agents The Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agents shall be under no duty to take Administrative Agent. The Administrative Agent and any discretionary action permitted to be taken by it pursuant to the 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 this Agreement unless it Article shall be requested in writing apply to do so by the Required Lenders. Subject any such sub-agent and to the appointment Related Parties of the Administrative Agent and acceptance any such sub-agent, and shall apply to their respective activities in connection with the syndication of a successor Agent the credit facilities provided for herein as provided below, either well as activities as Administrative Agent. The Administrative Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right right, with the consent of the Borrower (not to be unreasonably withheld or delayed), to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint appoint, with the consent of the Borrower (not to be unreasonably withheld or delayed), a successor AgentAdministrative Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank; 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 (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and (b) 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 as the Required Lenders appoint, with the consent of the Borrower (not to be unreasonably withheld or delayed), a successor Administrative Agent hereunder. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Administrative Agent, in its individual capacity and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Borrower to a successor Administrative Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Administrative Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. It is agreed that the Syndication Agent, the Co-Documentation Agents and the Joint Lead Arrangers shall, in their capacities as such, have no duties or responsibilities under this Agreement.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on behalf its behalf, including execution of such Lender or holder the other Loan Documents, and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Each of the Canadian Lenders hereby irrevocably appoints the Canadian Agent is hereby expressly authorized as its agent and authorizes the Canadian Agent to take such actions on its behalf and to exercise such powers as are delegated to the Canadian Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. Each of the UK Lenders hereby irrevocably appoints the UK Agent as its agent and authorizes the CAF UK Agent to take such actions on its behalf and to exercise such powers as are delegated to the UK Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. Each bank serving as an 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 such Agent, without hereby and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth herein in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) no Agent shall be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby by the Loan Documents that such 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 11.02), and (c) except as expressly set forth herein in the CAF Loan Documents, no Agent all payments of principal of and interest on shall have any duty to disclose, or shall be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and Company or any of its Subsidiaries that is communicated to or obtained by the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No bank serving as such Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 11.02) or in the absence of its or his or her own gross negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower or a Lender, or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as Document or any other agreement, instrument or document, or (v) the holder creation, perfection or priority of Liens on the Collateral or the existence of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from Collateral or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks (in the case of the Administrative Agent) and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Banks (in the case of a successor Administrative Agent) and in consultation with the Company, appoint a successor Agent, having which, in the case of the Administrative Agent shall be a combined capital bank with an office in New York, New York, or an Affiliate of any such bank; in the case of the Canadian Agent, shall be a bank with an office in Toronto, Canada, or an Affiliate of any such bank; and surplus in the case of at least $500,000,000 the UK Agent, shall be a bank with an office in London, England, or an Affiliate of any such bank. The appointment of a successor Canadian Agent or UK Agent shall be subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld). Upon the acceptance of any its appointment as an Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Agent, in its individual capacity and not as an the retiring Agent shall have the same rights be discharged from its duties and powers as obligations hereunder. The fees payable by any other Lender and may exercise Borrower to a successor Agent shall be the same as though it were not those payable to its predecessor unless otherwise agreed between such Borrower and such successor. After an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 11.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as an Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent, any Arranger, any Bookrunner, any Syndication Agent, any Documentation 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 Agents any Agent, any Arranger, any Bookrunner, any Syndication Agent, any Documentation 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Arrangers, the Bookrunners or any Syndication Agent or Documentation Agent, if any, identified as such in this Agreement, shall have any right, power, obligation, liability, responsibility or duty under this Agreement, except in its capacity, as applicable, as Administrative Agent, Canadian Agent, UK Agent, a Lender or an Issuing Bank hereunder. Without limiting the foregoing, none of the Arrangers, the Bookrunners or the Syndication Agents or Documentation Agents, if any, shall have or be deemed to have a fiduciary relationship with any Lender. Except with respect to the exercise of setoff rights of any Lender, in accordance with Section 11.08, 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 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. In its capacity, the Administrative Agent is a “representative” of the Holders of Secured Obligations within the meaning of the term “secured party” as defined in the UCC. Each Lender authorizes the Administrative Agent to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no 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 or for the benefit of the Administrative Agent, on behalf of the Holders of Secured Obligations. The Lenders hereby authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) as described in Sections 5.10(e) and 11.15(b), (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, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five (5) Business Days’ prior written request by the 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 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 the Administrative Agent’s opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of the 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. Each Borrower, on its behalf and on behalf of its Subsidiaries, and each Lender, on its behalf and on the behalf of its affiliated Holders of Secured Obligations, hereby irrevocably constitute the Administrative Agent as the holder of an irrevocable power of attorney (fondé de pouvoir within the meaning of Article 2692 of the Civil Code of Québec) in order to hold hypothecs and security granted by each Borrower or any Subsidiary on property pursuant to the laws of the Province of Quebec to secure obligations of any Borrower or any Subsidiary under any bond, debenture or similar title of indebtedness issued by any Borrower or any Subsidiary in connection with this Agreement, and agree that the Administrative Agent may act as the bondholder and mandatary with respect to any bond, debenture or similar title of indebtedness that may be issued by any Borrower or any Subsidiary and pledged in favor of the Holders of Secured Obligations in connection with this Agreement. Notwithstanding the provisions of Section 32 of the An Act respecting the special powers of legal persons (Quebec), JPMorgan Chase Bank, N.A. as Administrative Agent may acquire and be the holder of any bond issued by any Borrower or any Subsidiary in connection with this Agreement (i.e., the fondé de pouvoir may acquire and hold the first bond issued under any deed of hypothec by any Borrower or any Subsidiary). The Administrative Agent is hereby authorized to execute and deliver any documents necessary or appropriate to create and perfect the rights of pledge for the benefit of the Holders of Secured Obligations including a right of pledge with respect to the entitlements to profits, the balance left after winding up and the voting rights of the Company as ultimate parent of any subsidiary of the Company which is organized under the laws of the Netherlands and the Equity Interests of which are pledged in connection herewith (a “Dutch Pledge”). Without prejudice to the provisions of this Agreement and the other Loan Documents, the parties hereto acknowledge and agree with the creation of parallel debt obligations of the Company or any relevant Subsidiary as will be described in any Dutch Pledge (the “Parallel Debt”), including that any payment received by the Administrative Agent in respect of the Parallel Debt will conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application be deemed a satisfaction of a pro rata portion of the corresponding amounts of the Secured Obligations, and any payment to the Holders of Secured Obligations in satisfaction of the Secured Obligations shall conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application be deemed as satisfaction of the corresponding amount of the Parallel Debt. The parties hereto acknowledge and agree that, for purposes of a Dutch Pledge, any resignation by the Administrative Agent is not effective until its rights under the Parallel Debt are assigned to the successor Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Yrc Worldwide Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent, London Agent and Chase is hereby appointed to act as CAF Agent, Canadian Agent on behalf of the Lenders. Each of the Lenders and each assignee of any Lender hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the other Agents are hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, and by the Borrowers with respect to clause (c) below, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Default or Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Borrower pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any of the Borrowers or any of their Subsidiaries or other Affiliates thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice 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, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to any of the Borrowers or any of their Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for 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 or his or her own gross negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower (in which case such Agent shall give written notice to each other Lender), or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, with the consent of the Company (except during the continuance of an Event of Default hereunder, when no consent shall be required), to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent’s resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the Agents benefit of such retiring Agent, its sub-agents and their Affiliates may accept deposits from, lend money respective Related Parties in respect of any actions taken or omitted to and generally engage in be taken by any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof them while it was acting as if it were not an Agent. Each Lender agrees (ia) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding LoansLoans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers Company or any other Borrower and (ib) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agentsRelated Parties, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the BorrowersCompany or any other Borrower; provided that no Lender shall be liable to an Agent or any Agent such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are determined to have resulted from the gross negligence or willful misconduct of such Agent Agent, and any of its Related Parties or any of its their respective directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders identified on the facing page or signature pages of this Agreement or elsewhere herein as a “syndication agent” or “documentation agent” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf Each of the LendersLenders hereby irrevocably appoints Chase and Citibank as its agent hereunder and under the other Financing Documents and authorizes Chase and Citibank to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agents by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto (including the execution of the Collateral Agency and Intercreditor Agreement). Each of the Lenders hereby irrevocably appoints Citibank as its paying agent hereunder and under the other Financing Documents and authorizes the Agents Citibank to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Paying Agent by the terms and provisions hereofhereof or thereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the following provisions of this Agreement unless it Article IX shall be requested in writing to do so by the Required Lenders. Subject apply to the appointment and acceptance of a successor Paying Agent mutatis mutandis. The Persons serving as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent Administrative Agents hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an 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 an Agentthe Administrative Agents, and each of the Agents such Person and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agentthe Administrative Agents hereunder. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which The Administrative Agents shall not have been reimbursed by any duties or obligations except those expressly set forth herein and in the Borrowers and (i) to indemnify and hold harmless each other Financing Documents. Without limiting the generality of the foregoing, (a) the Administrative Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and any of its directorsis continuing, officers, employees or agents, on demand, in (b) the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same Administrative Agents shall not have been reimbursed any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Borrowers; provided other Financing Documents that no Lender the Administrative Agents are required to exercise in writing by the Required Lenders, and (c) except as expressly set forth herein and in the other Financing Documents, the Administrative Agents shall not have any duty to disclose, and shall not be liable for the failure to disclose, any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from information relating to the gross negligence or willful misconduct of such Agent Borrower or any of its directors, officers, employees Subsidiaries that is communicated to or agents. Each Lender agrees that any allocation made in good faith obtained by the bank serving as Administrative Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunder.WORKING CAPITAL AGREEMENT -------------------------
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. 58 54 Neither any Agent or nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. Each of the Agents The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint from the Lenders a successor AgentAdministrative 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 affiliate of any such bank, which successor shall be acceptable to CBS (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, such successor With respect shall succeed to and become vested with all the Loans made by it rights, powers, privileges and duties of the retiring Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After the Administrative Agent's resignation hereunder, each the provisions of the Agents, this Article and Section 9.5 shall continue in effect for its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage benefit in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) respect of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that while it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information was acting 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 Agents 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 or any related agreement or any document furnished hereunder or thereunderAdministrative Agent.
Appears in 1 contract
Samples: Credit Agreement (CBS Corp)
The Agents. 31 28 In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank of Texas, National Association is hereby appointed to act as Administrative Agent Agent, and Chase Manhattan International Limited is hereby appointed to act as CAF London Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents each Agent to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is Agents are hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; . The Administrative Agent is hereby expressly authorized by the Lenders, without hereby limiting any implied authority, (a) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent or any with its agency hereunder; and (b) to distribute to each Lender copies of its all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent. Neither Agent, and none of their directors, officers, employees or agents agents, shall be liable to any Lender as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers Borrower of any of the terms, conditionsconditions (except delivery to the Administrative Agent of the items required by Article IV to be delivered to it), covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the The Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it them in good faith to be genuine and correct and to have been signed or sent by the proper person Person or personsPersons. No Agent or any Neither Agent, and none of its their directors, officers, employees or agents agents, shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the The Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it them with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it them in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it them pursuant to the provisions of this Agreement unless it they shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent or London Agent, as the case may be, as provided below, either Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, or London, as the case may be, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank500,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity retiring Agent and not as an the retiring Agent shall have the same rights be discharged from its duties and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunder.obligations 32 29
Appears in 1 contract
Samples: Term Loan Agreement (Goodyear Tire & Rubber Co /Oh/)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each bank serving as an 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 an Agent, and such bank and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Company or Affiliate thereof as if it were not an Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent is hereby shall not have any duties or obligations except those expressly authorized by set forth herein and in the Lenders and other Credit Documents. Without limiting the CAF Agent, without hereby limiting any implied authoritygenerality of the foregoing, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has actual knowledge acquired occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise in connection No writing by the Required Lenders (or, if so specified by this Agreement, all the Lenders) and (c) except as expressly set forth herein and in the other Credit Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Company or any of its Affiliates that is communicated to or obtained by the bank serving as Administrative Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Administrative Agent shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or, if so specified by this Agreement, all the Lenders, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Article VII and Section 9.02) or in the absence of its or his or her own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower, or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered under any Credit Document or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in the Credit Documents or the occurrence of any Default, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of any Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Administrative Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected 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) believed by it to be genuine and to have been signed, sent or otherwise authenticated by a proper Person. An initial list of the proper Persons with respect to the Borrower appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). 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 so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all matters arising material respects (it being understood that oral notices of borrowing will be confirmed in writing by the Borrower in accordance with Section 2.03). In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by the Agents Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it the Administrative Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication 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 belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Borrower, to appoint a successor Agent which, so long as no Event of Default is continuing, shall be reasonably acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor AgentAdministrative Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring (or retired) Administrative Agent, in its individual capacity and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder or under the same rights and powers as any other Lender and may exercise Credit Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower and such successor; provided that the predecessor Administrative Agent shall pay the unearned portion of any fees paid in advance to either the successor Administrative Agent or the Borrower. After the Administrative Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. The Lenders agree to indemnify each Agent in its role capacity as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of such (to the Lenders, which shall extent not have been reimbursed by the Borrowers Borrower and (i) to indemnify and hold harmless each without limiting the obligation of the Agents and any of its directorsBorrower to do so), officersratably according to their Applicable Percentage on the date on which indemnification is sought under this Article VIII (or, employees or agentsif indemnification is sought after the date upon which the Loans shall have been paid in full, on demand, ratably in the amount of accordance with their Applicable Percentage immediately prior to such pro rata sharedate), from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or nature whatsoever which may after the payment of the Loans) be imposed on, incurred by or asserted against it such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of this Agreement the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by it such Agent under this Agreement to or in connection with any of the extent the same shall not have been reimbursed by the Borrowersforegoing; provided that no Lender shall be liable to any Agent for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the such Agent’s gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agentsmisconduct. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to The agreements in this paragraph between this Agreement shall survive the payment of the Loans and the Facility A Credit Agreement shall be conclusive and binding for all purposesother amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or Agreement, any related agreement or any document furnished hereunder or thereunder. The Co-Syndication Agents and Co-Documentation Agents shall not have any duties or responsibilities under any Credit Document in their capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Time Warner Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Chemical Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and the Fronting Bank (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the "Agents"). Each of the Lenders and each assignee of any such Lender, hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Fronting Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentFronting Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Fronting Bank (i) all payments of principal of and interest on (A) the Revolving Loans, (B) the HK Offered Rate Facility Loans, (C) only after a Thai Facility Participations Event, the Thai Facility Loans and (D) only after a Thai Offered Rate Facility Participations Event, the Thai Offered Rate Loans, (ii) all payments in respect of L/C Disbursements and (iii) all other amounts due to the Lenders hereunder (other than Thai Facility Loans and the CAF Agent hereunderThai Offered Rate Loans except pursuant to clauses (C) or (D) above), and promptly to distribute to each Lender and or the CAF Agent Fronting Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to IMS and the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder, provided that the Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default unless the Administrative Agent has received notice from a Lender or a Loan Party referring to this Agreement, describing such Event of Default and stating that such notice is a "notice of an event of default"; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by any Borrower or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of its the foregoing, the Agents are hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents. Neither the Agents nor any of their respective directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful wilful misconduct, or be responsible for for, or be required to ascertain or to make any inquiry concerning the accuracy or completeness of, any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers IMS or any Subsidiary of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan 77 Documents, instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers IMS or any Subsidiary on account of the failure of or delay in performance or breach by the other Agent or any Lender or the Fronting Bank of any of its obligations hereunder or to the other Agent or any Lender or the Fronting Bank on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent Fronting Bank or IMS or any Borrower Subsidiary of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. In no event any Agent be obligated to take any action, or omit to take any action, in contravention of any applicable law or regulation. The Lenders hereby acknowledge that the Agents neither Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (International Manufacturing Services Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Banks hereby irrevocably appoints Citibank, N.A. as its administrative agent and authorizes the Agents Citibank, N.A. to take such actions on behalf its behalf, including execution of such Lender or holder the other Loan Documents, and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto, and Citibank, N.A. hereby accepts such appointment. The Citibank, N.A. or an Affiliate or designee thereof shall also act as the Collateral Agent under the Loan Documents (for purposes of this Article VIII and Sections 9.03 and 2.17, the Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentCollateral Agent shall be collectively referred to as the “Agents”), without hereby limiting any implied authority, (a) to receive on behalf and each of the Lenders and the CAF Issuing Banks hereby irrevocably appoints and authorizes Citibank, N.A. (and Citibank, N.A. hereby accepts such appointment) and each such Affiliate and designee to act as the agent of such Lender and Issuing Bank for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent all payments pursuant to this Article VIII for purposes of principal of and interest holding or enforcing any Lien on the Loans Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and all other amounts due remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents as if set forth in full herein with respect thereto. The banks serving as the Agents hereunder shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the CAF same as though they were not an Agent, and such banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Irish Holdco or any Subsidiary or other Affiliate thereof as if they were not an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) the Agents shall not be subject to give notice on behalf any fiduciary or other implied duties, regardless of each whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the respective 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 9.02), and (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to disclose, and shall not be liable for the Borrowers failure to disclose, any information relating to Irish Holdco or any of its Subsidiaries that is communicated to or obtained by any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No bank serving as an Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 or elsewhere in the Loan Documents) or in the absence of its or his or her own gross negligence or willful misconduct. The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the respective Agent by Irish Holdco, the Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained 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 (vi) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person Person. The Agents also may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lenderliability for relying thereon. The Agents may consult with legal counsel (who may be counsel for Irish Holdco, the Subsidiary Guarantors or the Borrower), independent accountants and other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel experts selected by it with respect to all matters arising hereunder them, and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by the respective Agent. The Agents and any such sub-agent may perform any and all their duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant to their respective activities in connection with the provisions syndication of this Agreement unless it shall be requested in writing to do so by the Required Lenderscredit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks, the Borrower and any Additional Borrower. Any such resignation by the Administrative Agent hereunder shall also constitute its resignation as an Issuing Bank and the BorrowersSwingline Lender, as applicable, in which case the resigning Administrative Agent (x) shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of its rights as Issuing Bank or Swingline Lender, as the case may be, 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 resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders 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 Borrower and any Additional Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower, any Additional Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article VIII and Section 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. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Lenders, the Borrower and any Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed); provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor AgentCollateral Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Collateral Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Collateral Agent, in its individual capacity and not as an the retiring Collateral Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights Borrower and powers as any other Lender and may exercise Additional Borrower to a successor Collateral Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article VIII and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Collateral Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Collateral Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Horizon Therapeutics Public LTD Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement are hereby appointed to act as Administrative Agent, London Agent and Chase is hereby appointed to act as CAF Agent, Tokyo Agent on behalf of the LendersLenders and the Issuing Bank. Each of the Lenders Lenders, each assignee of any Lender and the Issuing Bank hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or the Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is and, to the extent expressly provided herein, the other Agents are hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of the foregoing, the Administrative Agent is hereby expressly authorized to release any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee Agreement in the event that all the capital stock of such Guarantor shall be sold, transferred or otherwise disposed of to a Person other than the Company or an Affiliate of the Company in a transaction permitted by Section 6.04. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise upon receipt of notice 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 11.02), and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose, and no Agent shall be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the institution serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. No Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 11.02) or in the absence of its or his or her own gross negligence or willful wilful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by a Borrower (in which case such Agent shall give written notice to each other Lender), or and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. Each Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 11.03 shall continue in effect for the Agents benefit of such retiring Agent, its sub-agents and their Affiliates may accept deposits from, lend money respective Related Parties in respect of any actions taken or omitted to and generally engage in be taken by any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof them while it was acting as if it were not an Agent. Each Lender agrees (ia) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding LoansLoans and available Commitments hereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers Company or any other Loan Party and (ib) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agentsRelated Parties, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the BorrowersCompany or any other Loan Party; provided PROVIDED that no Lender shall be liable to an Agent or any Agent such other indemnified Person for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each US Tranche Lender agrees that any allocation made to reimburse each of the Issuing Bank and its directors, officers, employees and agents, in good faith by each case, to the Agents of expenses or other amounts referred same extent and subject to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding same limitations as provided above for all purposesthe Agents. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Edwards Lifesciences Corp
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement (and their successors) are hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, London Agent under the Loan Documents on behalf of the LendersLenders and the Issuing Bank. Each of the Lenders Lenders, each assignee of any Lender and the Issuing Bank hereby irrevocably authorizes the Agents to take such actions on their behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is Agents are hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans and all other amounts due to the Lenders and or the CAF Agent Issuing Bank hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder and without any duty to account therefor to the Lenders or Issuing Bank. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise as directed upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents), provided that the Agent shall not be required to take any action that, in its opinion, could expose the Agent to liability or be contrary to any Loan Document or applicable law, rule or regulation, and (c) except as expressly set forth in the Loan Documents, Agents shall not have any duty to disclose, and Agents shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries or other Affiliates thereof that is communicated to or obtained by the Person serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. Agents shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its or his or her own gross negligence or willful misconduct, or as determined by a court of competent jurisdiction by a final and non-appealable judgment. Agents shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company, and Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuinenesssufficiency, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person (whether or personsnot such Person in fact meets the requirements set forth in the Loan Documents for being the signatory or sender thereof). No Each Agent also may rely, and shall not incur any liability for relying, upon any statement made to it orally or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent proper Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory or sender thereof), and may act upon any Lender such statement prior to receipt of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithwritten confirmation thereof. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either the Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each of the Agents retiring Agent shall be discharged from its duties and their Affiliates may accept deposits from, lend money to obligations hereunder and generally engage in any kind of business with under the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Loan Documents. After the Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents or any other Lender Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Each Lender, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Agents or the Lenders on the Effective Date. None of the Arrangers, the Syndication Agents or the Documentation Agents shall have any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or as Agents or Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder.
Appears in 1 contract
Samples: Credit Agreement (Waters Corp /De/)
The Agents. In order to expedite Each Lender hereby appoints and authorizes (a) the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions action as agent on its behalf of such Lender or holder and to exercise such powers and discretion under this Agreement as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions powers and discretion as are reasonably incidental thereto, and (b) the Documentation Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Documentation Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement (including, without limitation, enforcement or collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action that exposes the Administrative Agent to personal liability or that is contrary to this Agreement or applicable law. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) agrees to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute give to each Lender and the CAF Agent its proper share prompt notice of each payment so received; (a) notice given to give notice on behalf of each of it by the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Borrower or any of its Subsidiaries pursuant to the terms of this Agreement. Neither the Administrative Agent or the Documentation Agent nor any of its respective directors, officers, agents or employees or agents shall be liable as such for any action taken or omitted to be taken by any of it or them under or in connection with this Agreement, except for its or his or her their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, or be responsible for any statement, warranty or representation herein or the contents Administrative Agent and the Documentation Agent: (i) may treat the payee of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan Note as the holder thereof until the Administrative Agent receives and accepts an Assignment and Acceptance entered into by the Lender that is the payee of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderNote, given as assignor, and an Eligible Assignee, as assignee, as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance Section 8.07; (ii) may consult with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered omitted to be taken in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents , accountants or experts; (iii) make no warranty or representation to any Lender and shall not be under no responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (iv) shall not have any duty to take any discretionary action permitted ascertain or to be taken by it pursuant inquire as to the provisions performance or observance of any of the terms, covenants or conditions of this Agreement unless it shall be requested in writing to do so by on the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf part of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 Borrower or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directorsSubsidiaries or to inspect the property (including the books and records) of the Borrower or any of its Subsidiaries; (v) shall not be responsible to any Lender for the due execution, officerslegality, employees validity, enforceability, genuineness, sufficiency or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out value of this Agreement or any action taken other instrument or omitted document furnished pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier, telegram or telex) believed by it under this Agreement to the extent the same shall not have been reimbursed be genuine and signed or sent by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses proper party or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunderparties.
Appears in 1 contract
Samples: Credit Agreement (United Parcel Service of America Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints Citibank, N.A. as its administrative agent and authorizes the Agents Citibank, N.A. to take such actions on behalf its behalf, including execution of such Lender or holder the other Loan Documents, and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto, and Citibank, N.A. hereby accepts such appointment. Citibank, N.A. or an Affiliate or designee thereof shall also act as the Collateral Agent under the Loan Documents (for purposes of this Article VIII and Sections 9.03 and 2.14, the Administrative Agent and the Collateral Agent shall be collectively referred to as the “Agents”), and each of the Lenders hereby irrevocably appoints and authorizes Citibank, N.A. (and Citibank, N.A. hereby accepts such appointment) and each such Affiliate and designee to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to this Article VIII for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents as if set forth in full herein with respect thereto. The Administrative Agent is hereby expressly authorized by banks serving as the Agents hereunder shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the CAF same as though they were not an Agent, without hereby and such banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Irish Holdco or any Subsidiary or other Affiliate thereof as if they were not an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the respective Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders and as shall be necessary under the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereundercircumstances as provided in Section 9.02), and promptly (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to distribute disclose, and shall not be liable for the failure to each Lender and the CAF Agent disclose, any information relating to Irish Holdco or any of its proper share of each payment so received; (a) Subsidiaries that is communicated to give notice on behalf of each of the Lenders to the Borrowers of or obtained by any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No bank serving as an Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 or elsewhere in the Loan Documents) or in the absence of its or his or her own gross negligence or willful misconduct. The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the respective Agent by Irish Holdco, the Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained 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 (vi) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person Person. The Agents also may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lenderliability for relying thereon. The Agents may consult with legal counsel (who may be counsel for Irish Holdco, the Subsidiary Guarantors or the Borrower), independent accountants and other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel experts selected by it with respect to all matters arising hereunder them, and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by the respective Agent. The Agents and any such sub-agent may perform any and all their duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant to their respective activities in connection with the provisions syndication of this Agreement unless it shall be requested in writing to do so by the Required Lenderscredit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders Lenders, the Borrower and the Borrowersany Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor AgentAdministrative Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Administrative Agent, in its individual capacity and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights Borrower and powers as any other Lender and may exercise Additional Borrower to a successor Administrative Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower, any Additional Borrower and such successor. After the Administrative Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article VIII and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Administrative Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered 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. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Lenders, the Borrower and any Additional Borrower. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrower and any Additional Borrower (such consent not to be unreasonably withheld or delayed); provided that no consent of the Borrower or any Additional Borrower shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent which shall not have been reimbursed 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 Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers and (i) to indemnify and hold harmless each of the Agents Borrower and any Additional Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent’s resignation hereunder, the provisions of its directors, officers, employees or agents, on demand, this Article VIII and Section 9.03 shall continue in effect for the amount benefit of such pro rata shareretiring Collateral Agent, from its sub-agents and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements their respective Related Parties in respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Collateral Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders, if any, identified in this Agreement as a Lead Arranger, an Amendment No. 1 Arranger, an Amendment No. 2 Arranger, an Amendment No. 3 Arranger, a Co-Documentation Agent or a Co-Syndication 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 a Lead Arranger, Amendment No. 1 Arranger, Amendment No. 2 Arranger, Amendment No. 3 Arranger, Co-Documentation Agent and/or Co-Syndication Agent, as applicable, as it makes with respect to the Agents 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 Agents) authorized to act for, any other Lender. The Agents 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 their respective capacities, the Agents are “representatives” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Agents to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Agents) 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 Agents for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Agents are 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 Collateral Agent on behalf of the Secured Parties. The Lenders hereby authorize the Collateral Agent to release or, as applicable, subordinate any Lien granted to or held by the Collateral Agent upon any Collateral and to enter into non-disturbance or similar agreements, in each case, in connection with any Indebtedness incurred pursuant to Section 6.01(b)(xvi)(ii) and any other Indebtedness described in Section 9.13, in connection with dispositions of assets permitted under Section 6.02 or, other than with respect to lien release, in connection with licensing or sub-licensing transactions permitted under Sections 6.02 and 6.03, all as described further therein. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate particular types or items of Collateral and enter into non-disturbance or similar agreements pursuant hereto. The Administrative Agent and the Collateral Agent are authorized to enter into any Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, and extensions, restructuring, renewals, replacements of, such agreements) in connection with the incurrence by any Loan Party of any Permitted Junior Secured Refinancing Debt, Permitted Pari Passu Secured Refinancing Debt or Permitted Refinancing Indebtedness with respect thereto, or any other Indebtedness permitted by the terms of this Agreement to be secured by the Collateral on a pari passu or junior priority secured basis, in each case in order to permit such Indebtedness to be secured by a valid, perfected Lien (with such priority as may be designated by Irish Holdco or relevant Restricted Subsidiary, to the extent such priority is permitted by the Loan Documents), and the parties hereto acknowledge that each Intercreditor Agreement is (if entered into) binding upon them. Each Lender (a) understands, acknowledges and agrees that Liens may be created on the Collateral pursuant to the documentation relating to any Indebtedness incurred as permitted by this Agreement which is (in accordance with the terms hereof) to be secured thereby, on a pari passu, or junior, secured basis to the Liens securing the Secured Obligations, which Liens securing any such other Indebtedness shall be subject to the terms and conditions of the relevant Intercreditor Agreement executed and delivered as required hereby, (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the respective Intercreditor Agreement (if entered into) and (c) hereby authorizes and instructs the Administrative Agent and Collateral Agent to enter into any Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, such agreements) in connection with the incurrence by any Loan Party of any secured Indebtedness as contemplated above, in order to permit such Indebtedness to be secured by a valid, perfected Lien (with such priority as may be designated by the Applicable Borrower or relevant Restricted Subsidiary, to the extent such priority is permitted by the Loan Documents), and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not bank serving as an 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 an Agent, and each of the Agents such bank and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers any Company or any Subsidiary or other Affiliate thereof as if it were not an AgentAgent hereunder. Each Lender agrees The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (ia) the Administrative Agent shall not be subject to reimburse any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the AgentsAdministrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, on demand, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing by the amount of its pro rata share Required Lenders (based on its Commitment hereunder or, if so specified by this Agreement, all the Commitments shall have been terminatedLenders), and (c) except as expressly set forth herein, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which Administrative Agent shall not have been reimbursed any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Company that is communicated to or obtained by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such bank serving as Administrative Agent or any of its directorsAffiliates 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, officersif so specified by this Agreement, employees all the Lenders) or agentsin the absence of its own gross negligence or willful misconduct. Each Lender agrees that The Administrative Agent shall be deemed not to have knowledge of any allocation Default unless and until written notice thereof is given to the Administrative Agent by any 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 good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 connection with this Agreement or any related agreement other Credit Document, (ii) the contents of any certificate, report or other document delivered under any Credit Document or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Document, (iv) the validity, enforceability, effectiveness or genuineness of any Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document furnished hereunder or thereunder.other writing believed by it to be genuine and to have been signed or sent by a proper Person. An initial list of the proper Persons with respect to the Borrowers appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). The Administrative Agent also
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, JPMorgan Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase JPMEL is hereby appointed to act as CAF London Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is Agents are hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent has Agents have actual knowledge acquired in connection No Agent or with their agency hereunder; and (c) to distribute promptly to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers pursuant to this Agreement as received by the Applicable Agent. Neither the Agents nor any of its their directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her their own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which that makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the The Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it them in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the any other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Borrowers of any of their respective obligations hereunder or in connection herewith. Each of the The Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it them with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it them in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it them pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Agreement (Perkinelmer Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints Citibank, N.A. as its administrative agent and authorizes the Agents Citibank, N.A. to take such actions on behalf its behalf, including execution of such Lender or holder the other Loan Documents, and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto, and Citibank, N.A. hereby accepts such appointment. Citibank, N.A. or an Affiliate or designee thereof shall also act as the Collateral Agent under the Loan Documents (for purposes of this Article VIII and Sections 9.03 and 2.14, the Administrative Agent and the Collateral Agent shall be collectively referred to as the “Agents”), and each of the Lenders hereby irrevocably appoints and authorizes Citibank, N.A. (and Citibank, N.A. hereby accepts such appointment) and each such Affiliate and designee to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to this Article VIII for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.03), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents as if set forth in full herein with respect thereto. The Administrative Agent is hereby expressly authorized by banks serving as the Agents hereunder shall have the same rights and powers in their capacity as Lenders as any other Lender and may exercise the CAF same as though they were not an Agent, without hereby and such banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Irish Holdco or any Subsidiary or other Affiliate thereof as if they were not an Agent hereunder. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the respective Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders and as shall be necessary under the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereundercircumstances as provided in Section 9.02), and promptly (c) except as expressly set forth in the Loan Documents, the Agents shall not have any duty to distribute disclose, and shall not be liable for the failure to each Lender and the CAF Agent disclose, any information relating to Irish Holdco or any of its proper share of each payment so received; (a) Subsidiaries that is communicated to give notice on behalf of each of the Lenders to the Borrowers of or obtained by any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No bank serving as an Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 or elsewhere in the Loan Documents) or in the absence of its or his or her own gross negligence or willful misconduct. The Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the respective Agent by Irish Holdco, a Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewithwith any Loan Document, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained 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 (vi) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person Person. The Agents also may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the The Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for Irish Holdco, Irish Intermediate Holdco, Irish New Intermediate Holdco or the Borrowers), independent accountants and other experts selected by it with respect to all matters arising hereunder them, and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by the respective Agent. The Agents and any such sub-agent may perform any and all their duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant to their respective activities in connection with the provisions syndication of this Agreement unless it shall be requested in writing to do so by the Required Lenderscredit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrowers (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrowers shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor AgentAdministrative Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Administrative Agent, in its individual capacity and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Borrowers to a successor Administrative Agent shall be the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money those payable to and generally engage in any kind of business with its predecessor unless otherwise agreed between the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an and such successor. After the Administrative Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article VIII and Section 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. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Lenders in and the Borrowers. Upon any such resignation, the Required Lenders shall have the right (with the consent of the Borrowers (such consent not to be unreasonably withheld or delayed); provided that no consent of the Borrowers shall be required if an Event of Default under clause (a), (b), (h), (i) or (j) of Article VII has occurred and is continuing) to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Collateral Agent gives notice of its role as Agentresignation, including counsel fees and compensation of agents and employees paid for services rendered then the retiring Collateral Agent may, on behalf of the Lenders, appoint a successor Collateral Agent which shall not have been reimbursed 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 Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and (i) to indemnify such successor. After the Collateral Agent’s resignation hereunder, the provisions of this Article VIII and hold harmless each of Section 9.03 shall continue in effect for the Agents and any of its directors, officers, employees or agents, on demand, in the amount benefit of such pro rata shareretiring Collateral Agent, from its sub-agents and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements their respective Related Parties in respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Collateral Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Lenders, if any, identified in this Agreement as a Lead Arranger, a Co-Documentation Agent or a Co-Syndication 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 a Lead Arranger, Co-Documentation Agent and/or Co-Syndication Agent, as applicable, as it makes with respect to the Agents 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 Agents) authorized to act for, any other Lender. The Agents 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 their respective capacities, the Agents are “representatives” of the Secured Parties within the meaning of the term “secured party” as defined in the New York Uniform Commercial Code. Each Lender authorizes the Agents to enter into each of the Collateral Documents to which it is a party and to take all action contemplated by such documents. Each Lender agrees that no Secured Party (other than the Agents) 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 Agents for the benefit of the Secured Parties upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Agents are 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 Collateral Agent on behalf of the Secured Parties. The Lenders hereby authorize the Collateral Agent to release or, as applicable, subordinate any Lien granted to or held by the Collateral Agent upon any Collateral and to enter into non-disturbance or similar agreements, in each case, in connection with any Indebtedness incurred pursuant to Section 6.01(b)(xvi)(ii) and any other Indebtedness described in Section 9.13, in connection with dispositions of assets permitted under Section 6.02 or, other than with respect to lien release, in connection with licensing or sub-licensing transactions permitted under Sections 6.02 and 6.03, all as described further therein. Upon request by the Collateral Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate particular types or items of Collateral and enter into non-disturbance or similar agreements pursuant hereto. The Administrative Agent and the Collateral Agent are authorized to enter into any Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, and extensions, restructuring, renewals, replacements of, such agreements) in connection with the incurrence by any Loan Party of any Permitted Junior Secured Refinancing Debt, Permitted Pari Passu Secured Refinancing Debt or Permitted Refinancing Indebtedness with respect thereto, or any other Indebtedness permitted by the terms of this Agreement to be secured by the Collateral on a pari passu or junior priority secured basis, in each case in order to permit such Indebtedness to be secured by a valid, perfected Lien (with such priority as may be designated by Irish Holdco or relevant Restricted Subsidiary, to the extent such priority is permitted by the Loan Documents), and the parties hereto acknowledge that each Intercreditor Agreement is (if entered into) binding upon them. Each Lender (a) understands, acknowledges and agrees that Liens may be created on the Collateral pursuant to the documentation relating to any Indebtedness incurred as permitted by this Agreement which is (in accordance with the terms hereof) to be secured thereby, on a pari passu, or junior, secured basis to the Liens securing the Secured Obligations, which Liens securing any such other Indebtedness shall be subject to the terms and conditions of the relevant Intercreditor Agreement executed and delivered as required hereby, (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the respective Intercreditor Agreement (if entered into) and (c) hereby authorizes and instructs the Administrative Agent and Collateral Agent to enter into any Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, such agreements) in connection with the incurrence by any Loan Party of any secured Indebtedness as contemplated above, in order to permit such Indebtedness to be secured by a valid, perfected Lien (with such priority as may be designated by the Borrowers or relevant Restricted Subsidiary, to the extent such priority is permitted by the Loan Documents), and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and Issuing Banks hereby irrevocably appoints the Agents as its agents and authorizes the Agents to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms hereof and provisions hereofof the other Credit Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby bank or banks serving as the Agents hereunder shall have the same rights and powers in their capacity as Lenders or Issuing Banks as any other Lender or Issuing Bank and may exercise the same as though they were not Agents, and such bank or banks and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if they were not Agents hereunder. The Agents shall not have any duties or obligations except those expressly authorized by set forth herein. Without limiting the Lenders and generality of the CAF Agent, without hereby limiting any implied authority, foregoing (a) the Agents shall not be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Lenders Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the CAF Agent all payments of principal of Agents are required to exercise in writing by the Majority Lenders, and interest on (c) except as expressly set forth herein, the Loans Agents shall not have any duty to disclose, and all other amounts due shall not be liable for the failure to disclose, any information communicated to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders Agents by or relating to the Borrowers of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No Agent Borrower or any of its directors, officers, employees or agents Subsidiary. The Agents shall not be liable as such for any action taken or omitted not taken by any them with the consent or at the request of them except for its the Majority Lenders or his the Lenders, as the case may be, or her in the absence of their own gross negligence or willful misconduct. In addition, the Agents shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Agents by the Borrower or a Lender or Issuing Bank, and the Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth herein or therein, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of this Agreement or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere herein or therein, other than to confirm receipt of items expressly required to be delivered to the Agents. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith them to be genuine and correct and to have been signed or sent by the proper person Person. The Agents also may rely upon any statement made to them orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by them to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the The Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it them with respect to all matters arising hereunder reasonable care, and shall not be liable for any action taken or suffered in good faith not taken by it them in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Agents may perform any and all their duties and exercise their rights and powers by or through any one or more sub-agents appointed by the Agents. The Agents and any such sub-agent may perform any and all their duties and exercise their rights and powers through their respective Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Affiliates of the Agents shall be under no duty to take and any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenderssuch sub-agent. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Majority Lenders shall have the right to appoint a successor Agent acceptable to with the BorrowersBorrower’s written consent (which shall not be unreasonably withheld or delayed and shall not be required from the Borrower if an Event of Default under clause (a), (b), (h) or (i) of Section 7.01 has occurred and is continuing). If no successor shall have been so appointed by the Required Majority Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, with the Borrower’s written consent (which shall not be unreasonably withheld or delayed and shall not be required if an Event of Default under clause (a), (b), (h) or (i) of Section 7.01 has occurred and is continuing), appoint a successor AgentAgent which shall be a bank or an Affiliate thereof, having in each case with a combined capital and surplus net worth of at least $500,000,000 or 1,000,000,000 and an Affiliate of any such bankoffice in New York, New York. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of the Agents this Article and their Affiliates may accept deposits from, lend money Section 9.03 shall continue in effect for its benefit in respect of any actions taken or omitted to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof be taken by it while it was acting as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender Issuing Bank acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents or any other Lender or Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or Agreement, any related agreement or any document furnished hereunder or thereunder. Notwithstanding any other provision contained herein, (a) each Lender and each Issuing Bank acknowledges that the Administrative Agent is not acting as an agent of the Borrower and that the Borrower will not be responsible for acts or failures to act on the part of the Administrative Agent and (b) none of the Arrangers, Syndication Agents, Documentation Agents, Senior Managing Agents or Managing Agents shall, in its capacity as such, have any responsibilities, fiduciary or otherwise, to the Borrower, to any Lender or to any other Person under this Agreement or the other Credit Documents. Without prejudice to the provisions of this Article VIII, each Lender and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) to act as the Person holding the power of attorney (in such capacity, the “fondé de pouvoir”) of the Lenders and Issuing Banks as contemplated under Article 2692 of the Civil Code of Quebec, and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties which are conferred upon the fondé de pouvoir under any hypothec. Moreover, without prejudice to such appointment and authorization to act as the Person holding the power of attorney as aforesaid, each Lender and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral Agent) (in such capacity, the “Custodian”) to act as agent and custodian for and on behalf of the Lenders and Issuing Banks to hold and to be the sole registered holder of any debenture which may be issued under any hypothec, the whole notwithstanding Section 32 of the Act Respecting the Special Powers of Legal Persons (Quebec) or any other applicable law. In this respect, (i) the Custodian shall keep a record indicating the names and addresses of, and the pro rata portion of the obligations and indebtedness secured by any pledge of any such debenture and owing to each Lender and Issuing Bank and (ii) each Lender and Issuing Bank will be entitled to the benefits of any charged property covered by any hypothec and will participate in the proceeds of realization of any such charged property, the whole in accordance with the terms hereof. Each of the fondé de pouvoir and the Custodian shall (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the fondé de pouvoir and the Custodian (as applicable) with respect to the charged property under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise, (b) benefit from and be subject to all provisions hereof with respect to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Lenders or the Issuing Banks, and (c) be entitled to delegate from time to time any of its powers or duties under any hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise and on such terms and conditions as it may determine from time to time. Any Person who becomes a Lender or an Issuing Bank shall be deemed to have consented to and confirmed: (y) the fondé de pouvoir as the Person holding the power of attorney as aforesaid and to have ratified, as of the date it becomes a Lender or Issuing Bank, all actions taken by the fondé de pouvoir in such capacity, and (z) the Custodian as the agent and custodian as aforesaid and to have ratified, as of the date it becomes a Lender or Issuing Bank, all actions taken by the Custodian in such capacity.
Appears in 1 contract
Samples: Assignment and Assumption (Goodyear Tire & Rubber Co /Oh/)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. Each bank serving as an 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 an Agent, and such bank and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Company or Affiliate thereof as if it were not an Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent is hereby shall not have any duties or obligations except those expressly authorized by set forth herein and in the Lenders and other Credit Documents. Without limiting the CAF Agent, without hereby limiting any implied authoritygenerality of the foregoing, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has actual knowledge acquired occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise in connection No writing by the Required Lenders (or, if so specified by this Agreement, all the Lenders) and (c) except as expressly set forth herein and in the other Credit Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Company or any of its Affiliates that is communicated to or obtained by the bank serving as Administrative Agent or any of its directors, officers, employees or agents Affiliates in any capacity. The Administrative Agent shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or, if so specified by this Agreement, all the Lenders, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Article VII and Section 9.02) or in the absence of its or his or her own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower, a Lender or an Issuing Bank, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered under any Credit Document or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in the Credit Documents or the occurrence of any Default, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of any Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Administrative Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected 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) believed by it to be genuine and to have been signed, sent or otherwise authenticated by a proper Person. An initial list of the proper Persons with respect to the Borrower appears on Schedule 8. Schedule 8 shall not be altered except in writing by a Person appearing thereon (or by a successor to such Person occupying the equivalent office). 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 so long as such statement, in the case of a Borrowing Request, complies with the requirements of Section 2.03 in all matters arising material respects (it being understood that oral notices of borrowing will be confirmed in writing by the Borrower in accordance with Section 2.03). 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 an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. The Lenders hereby acknowledge that Administrative Agent may perform any and all its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by the Agents Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it the Administrative Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication 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 belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Borrower, to appoint a successor Agent which, so long as no Event of Default is continuing, shall be reasonably acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor AgentAdministrative Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring (or retired) Administrative Agent, in its individual capacity and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder or under the same rights and powers as any other Lender and may exercise Credit Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower and such successor; provided that the predecessor Administrative Agent shall pay the unearned portion of any fees paid in advance to either the successor Administrative Agent or the Borrower. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 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 it while it was acting as Administrative Agent. The Lenders agree to indemnify each Agent in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Agents Borrower to do so), ratably according to their Commitments in effect (or at any time after the Commitments have terminated, their Revolving Credit Exposures) on the date on which indemnification is sought under this Article VIII (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees Commitments (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminatedterminated earlier, the amount of its outstanding Loanstheir Revolving Credit Exposures) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) immediately prior to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata sharedate), from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or nature whatsoever which may after the payment of the Loans) be imposed on, incurred by or asserted against it such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of this Agreement the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by it such Agent under this Agreement to or in connection with any of the extent the same shall not have been reimbursed by the Borrowersforegoing; provided that no Lender shall be liable to any Agent for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the such Agent’s gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agentsmisconduct. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to The agreements in this paragraph between this Agreement shall survive the payment of the Loans and the Facility A Credit Agreement shall be conclusive and binding for all purposesother amounts payable hereunder. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or Agreement, any related agreement or any document furnished hereunder or thereunder. The Co-Syndication Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Documentation Agents shall not have any duties or responsibilities under any Credit Document in their capacity as such. None of the Co-Syndication Agents, Joint Lead Arrangers, Joint Bookrunners and Co-Documentation Agents shall have or be deemed to have any fiduciary relationship with any Lender.
Appears in 1 contract
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association JPMCB is hereby appointed to act as Administrative Paying Agent on behalf of the Lenders and Chase is Issuing Banks, and JPMCB and Bank of America, N.A. are hereby appointed to act as CAF Agent, Administrative Agents on behalf of the LendersLenders and Issuing Banks. Each of the Lenders and Issuing Banks hereby irrevocably authorizes the Agents each Agent to take such actions on behalf of such Lender or holder Issuing Bank, as the case may be, and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Paying Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Banks all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent or any Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative Paying Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Paying Agent. It is understood that the Agents shall not have any duties or obligations except those expressly set forth herein. Neither any Agent or nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents No Agent shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents Each Agent may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it until, in the case of the Paying Agent, the Paying Agent shall have received notice from such Lender or, in the case of any other Agent, such Agent shall have received notice from the Paying Agent that it received such notice from such Lender, in each case, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall 50 be binding on all the Lenders. Each of the Agents Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Neither any Agent or nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents appointed in good faith by such Agent or employees of any thereof and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents each Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Paying Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Banks and the BorrowersBorrower. Upon any such resignationresignation of the Paying Agent, the Required Lenders shall have the right to appoint a successor Paying Agent acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Paying Agent gives notice of its resignation, then the retiring Paying Agent may, on behalf of the LendersLenders and the Issuing Banks, appoint a successor AgentPaying 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 any appointment as a Paying Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Paying Agent and the retiring Paying Agent shall be discharged from its duties and obligations hereunder. After any Agent's resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Loans made by it hereunder, each of the Agents, any Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the AgentsPaying Agent, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loanshereunder) of any expenses incurred for the benefit of the Lenders in its role as by such Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers Borrower, and (iii) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as an Agent or any of them in any way relating to or arising out of this Agreement or any action taken or omitted by it or any of them under this Agreement to the extent the same shall not have been reimbursed by the BorrowersBorrower; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any related agreement or any document furnished hereunder or thereunder. Each of the Borrower and its Subsidiaries and the Lenders acknowledges that Merrill Lynch Capital Corporation and Citibank, N.A. have no responsxxxxxxxex xx obligations pursuant to this Agreement in their capacity as syndication agents.
Appears in 1 contract
Samples: Credit Facility Agreement (At&t Wireless Services Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. The Agents. Citicorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to any of the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by such Agent. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent's resignation hereunder, the provisions of this Article and Section 10.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI and Harris, as Joint Lead Arrangers and Joint Bookrunners, nor Harris, as Xxxxxcation Agent, nor CIBC and Rabobank, as Co-Documentatxxx Xxents, in such respective capacities, shall have any obligations, duties or responsibilities, or shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Seminis Inc)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank the Persons named in the heading of Texas, National Association is this Agreement (and their successors) are hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, London Agent under the Loan Documents on behalf of the LendersLenders and the Issuing Bank. Each of the Lenders Lenders, each assignee of any Lender and the Issuing Bank hereby irrevocably authorizes the Agents to take such actions on their behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is Agents are hereby expressly authorized by the Lenders and the CAF AgentIssuing Bank, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Bank all payments of principal of and interest on the Loans and all other amounts due to the Lenders and or the CAF Agent Issuing Bank hereunder, and promptly to distribute to each Lender and or the CAF Agent Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Company of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Company or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. With respect to the Loans made by it hereunder, each Agent in its individual capacity and not as Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and the Agents and their Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder and without any duty to account therefor to the Lenders or Issuing Bank. The Agents shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) Agents shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) Agents shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise as directed upon receipt of notice in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents), provided that the Agent shall not be required to take any action that, in its opinion, could expose the Agent to liability or be contrary to any Loan Document or applicable law, rule or regulation, and (c) except as expressly set forth in the Loan Documents, Agents shall not have any duty to disclose, and Agents shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries or other Affiliates thereof that is communicated to or obtained by the Person serving as Agent or any of its directors, officers, employees or agents Affiliates in any capacity. Agents shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its or his or her own gross negligence or willful misconduct, or as determined by a court of competent jurisdiction by a final and non-appealable judgment. Agents shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by the Company, and Agents shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewithherewith or therewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuinenesssufficiency, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action or inaction pursuant thereto shall be binding on all the LendersAgent. Each of the Agents shall, in the absence of knowledge to the contrary, Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person (whether or personsnot such Person in fact meets the requirements set forth in the Loan Documents for being the signatory or sender thereof). No Each Agent also may rely, and shall not incur any liability for relying, upon any statement made to it orally or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent proper Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory or sender thereof), and may act upon any Lender such statement prior to receipt of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithwritten confirmation thereof. Each of the Agents Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each 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 such Agent. Each 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 Lenders hereby acknowledge that exculpatory provisions of the Agents preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of this Agreement unless it each Agent and any such sub-agent, and shall be requested apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided belowin this paragraph, either the Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right right, in consultation with the Company, to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an retiring Agent, and each of the Agents retiring Agent shall be discharged from its duties and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with obligations hereunder. After the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesthem while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents or any other Lender Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.. Each Lender, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Agents or the Lenders on the Effective Date. None of the Arrangers, the Syndication Agents or the Documentation Agents shall have any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or as Agents or Issuing Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder. 63
Appears in 1 contract
Samples: Credit Agreement (Waters Corp /De/)
The Agents. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank of Texas, National Association is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Collateral Agent, in each case on behalf of the LendersLenders and the Issuing Banks. Each of the Lenders and each assignee of any such Lender and each Issuing Bank, hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder assignee or Issuing Bank and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Banks, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Banks all payments of principal of and interest on the Loans Loans, all payments in respect of L/C Disbursements and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and or the CAF Agent applicable Issuing Bank its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No Agent with its agency hereunder; (c) pursuant to Section 5.13, request the Parent Borrower to exercise all remedies under the Franchise Agreement (including Governance Remedies); and (d) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrowers or any other Loan Party pursuant to this Agreement or the other Loan Documents as received by the Administrative Agent. Without limiting the generality of its the foregoing, the Administrative Agent and the Collateral Agent are hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents. The Borrowers agree that the Administrative Agent may designate prior to the Closing Date any other Lender with the title co-agent and that any such co-agent shall not be obligated to perform any duties in such capacity as a co-agent. Neither the Agents nor any of their respective directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers or any other Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents, instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or Neither the Agents nor any of its their respective directors, officers, employees or agents shall have any responsibility to the Borrowers or any other Loan Party on account of the failure of or delay in performance or breach by the other Agent any Lender or any Lender Issuing Bank of any of its obligations hereunder or to the other Agent any Lender or any Lender Issuing Bank on account of the failure of or delay in performance or breach by any other Lender, Lender or Issuing Bank or the other Agent Borrowers or any Borrower other Loan Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that none of the Agents shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent any of the Agents may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders Lenders, with the consent of the Parent Borrower (which consent shall not be unreasonably withheld), shall have the right to appoint a successor Agent acceptable to successor, provided the Borrowersconsent of the Parent Borrower shall not be required if an Event of Default has occurred and is continuing. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having with the consent of the Parent Borrower (which consent shall not be unreasonably withheld), which shall be a bank that is a Lender and has a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank, provided the consent of the Parent Borrower shall not be required if an Event of Default has occurred and is continuing. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After the Agent's resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (ia) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the aggregate Commitments shall have been terminated, the amount of its outstanding Loanshereunder) of any expenses incurred for the benefit of the Lenders in its role as Agentby the Agents, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which that shall not have been reimbursed by the Borrowers or any other Loan Party and (ib) to indemnify and hold harmless each of the Agents Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which that may be imposed on, incurred by or asserted against it in its capacity as Agent or any of them in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted by it or any of them under this Agreement or any other Loan Document, to the extent the same shall not have been reimbursed by the Borrowers; Borrowers or any other Loan Party, provided that no Lender shall be liable to an Agent or any Agent such other indemnified person for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting that are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents 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 or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Neither the Syndication Agent nor the Documentation Agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
The Agents. In order Each Lender and each of the other Guaranteed Creditors (including each Guaranteed Creditor that is not or will not become a party to expedite the transactions contemplated by this Agreement) by its acceptance of the benefits of this Agreement and the respective Security Documents, Chase Bank of Texashereby appoints Citicorp North America, National Association is hereby appointed Inc. to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the LendersLenders and to act as Collateral Agent on behalf of the Guaranteed Creditors. Each of the Lenders Lenders, each assignee of any such Lender and each other Guaranteed Creditor hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee or such other Guaranteed Creditor and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF Agenteach other Guaranteed Creditor, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Canadian Parent or any Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent with its agency hereunder; (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Canadian Parent or any Borrower pursuant to this Agreement as received by such Agent, (d) to enter into the Security Documents on behalf of the Lenders and each other Guaranteed Creditor and (e) to claim all Obligations owed to any Lender or any other Guaranteed Creditor against each Borrower in its own name for the purpose of any Security Documents. Each Lender (acting for itself and on behalf of each of its directorsLender Affiliates which is or becomes a Guaranteed Creditor from time to time) and each of the other Guaranteed Creditors confirms the appointment and designation of the Collateral Agent (or any successor thereto) as the person holding the power of attorney (“fondé de pouvoir”) within the meaning of Article 2692 of the Civil Code of Québec for the purposes of the hypothecary security under each deed of hypothec to be granted by each Qualified Non-U.S. Loan Party under the laws of the Province of Québec and, officersin such capacity, employees the Collateral Agent shall hold the hypothecs granted under the laws of the Province of Québec as such fondé de pouvoir in the exercise of the rights conferred thereunder. The execution by the Collateral Agent, as such fondé de pouvoir prior to the date hereof of any deed creating or agents evidencing any such hypothec is hereby ratified and confirmed. Notwithstanding the provisions of Section 32 of the Act respecting the special powers of legal persons (Québec), the Collateral Agent may acquire and be the holder of any of the debentures secured by any such hypothec. Each future Lender and each of the other Guaranteed Creditors that becomes party to this Agreement, by becoming a party to this Agreement, shall be deemed to have ratified and confirmed (for itself and, in the case of each Lender, on behalf of each of its Lender Affiliates that is or becomes a Guaranteed Creditor from time to time) the appointment of the Collateral Agent as fondé de pouvoir. None of the Agents nor any of their Related Parties shall be liable to the Guaranteed Creditors as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders Guaranteed Creditors for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the LendersGuaranteed Creditors. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender Guaranteed Creditors of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Guaranteed Creditors or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Each Lenders (acting for itself and on behalf of each of its Lender Affiliates which is or becomes a Guaranteed Creditor from time to time) hereby acknowledge acknowledges that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the Borrowers. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Canadian Parent or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, none of CGMI, as the Lead Arranger, The Toronto-Dominion Bank, as Syndication Agent, or Comerica Bank or HSBC Bank USA, National Association, as Co-Documentation Agents, shall have any obligations, duties or responsibilities under this Agreement or any other Loan Document, and shall have no liability to any Lender or Loan Party or any of their respective Affiliates or any other Person in connection therewith or as a result thereof. The provisions of the third, fifth and sixth paragraphs of Section 8.01 shall apply to CGMI, as the Lead Arranger, The Toronto-Dominion Bank, as Syndication Agent, and Comerica Bank and HSBC Bank USA, National Association, as Co-Documentation Agents as fully as if it were an Agent.
Appears in 1 contract
Samples: Credit Agreement (Intertape Woven Products Services S.A. De C.V.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is and CSFB are hereby appointed to act as Co-Administrative Agent Agents and Chase is hereby appointed to act as CAF Payment Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Co-Administrative Agents and the Payment Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Co-Administrative Agents and the Payment Agent by the terms and provisions hereofof the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Any bank serving as Co-Administrative Agent is hereby expressly authorized by or Payment Agent hereunder shall have the Lenders same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not such Co-Administrative Agent or Payment Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers, any Subsidiary or other Affiliate thereof as if it were not such Co- Administrative Agent or Payment Agent hereunder. The Co-Administrative Agents and the CAF Agent, without hereby Payment Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) no Co-Administrative Agent or Payment Agent shall be subject to receive on behalf any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) no Co- Administrative Agent or Payment Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Co- Administrative Agent or Payment 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 CAF Loan Documents, no Co-Administrative Agent all payments of principal of or Payment Agent shall have any duty to disclose, and interest on shall not be liable for the Loans and all other amounts due failure to disclose, any information relating to the Lenders and Company or any Subsidiary that is communicated to or obtained by the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which the bank serving as Co-Administrative Agent has actual knowledge acquired in connection No or Payment Agent or any of its directors, officers, employees Affiliates in any capacity. No Co- Administrative Agent or agents Payment Agent shall be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for 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 or his or her own gross negligence or willful wilful misconduct. No Co-Administrative Agent or Payment Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Co-Administrative Agent or Payment Agent by the Borrowers or a Lender, and no such Co-Administrative Agent or Payment Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein 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, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants or agreements contained in this Agreement. The Agents shall not be responsible to (iv) the Lenders for the due execution, genuineness, validity, enforceability enforceability, effectiveness or effectiveness genuineness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such LenderDocument or any other agreement, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in actinginstrument or document, or refraining from acting(v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, other than to confirm receipt of items expressly required to be delivered to such instructions and any action Co-Administrative Agent or inaction pursuant thereto shall be binding on all the LendersPayment Agent. Each of the Agents shall, in the absence of knowledge to the contrary, Co-Administrative Agent or Payment Agent shall be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document other writing believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or personsPerson. No Each Co-Administrative Agent or Payment Agent also may rely upon any of its directors, officers, employees statement made to it orally or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other proper Person, and shall not incur any liability for relying thereon. Each Co- Administrative Agent or any Lender of any of its obligations hereunder or to the other Payment Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each Co-Administrative Agent or Payment 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 such Co-Administrative Agent or Payment Agent. Each Co- Administrative Agent or Payment 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 Lenders hereby acknowledge that exculpatory provisions of the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to preceding paragraphs and the provisions of this Agreement unless it Section 10.03 shall be requested apply to any such sub-agent and to the Related Parties of the Co-Administrative Agents or Payment Agent and any such sub-agent, and shall apply to their respective activities in writing to do so by connection with the Required Lenderssyndication of the credit facilities provided for herein as well as activities as Co-Administrative Agent or Payment Agent. Subject to the appointment and acceptance of a successor Co- Administrative Agent or Payment Agent as provided belowin this paragraph, either any Co- Administrative Agent or the Payment Agent may resign at any time by notifying the Lenders and the BorrowersCompany. Upon any such resignation, the Required Lenders shall have the right (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (f) or (g) of Article VII) the Company, which shall not be unreasonably withheld) to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Co- Administrative Agent or Payment Agent gives notice of its resignation, then the retiring Co-Administrative Agent mayor Payment Agent may (in consultation with, and with the consent of (unless an Event of Default has occurred and is continuing pursuant to clause (f) or (g) of Article VII), the Company, which shall not unreasonably withhold such consent and which shall, if the retiring Co- Administrative Agent or Payment Agent shall so request, designate and approve a successor Co-Administrative Agent or Payment Agent) on behalf of the Lenders, appoint a successor AgentCo-Administrative Agent or Payment Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Co-Administrative Agent or Payment Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Co- Administrative Agent or Payment Agent, in its individual capacity and not as an the retiring Co-Administrative Agent or Payment Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Borrowers to a successor Co-Administrative Agent or the Payment Agent shall be the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money those payable to and generally engage in any kind of business with its predecessor unless otherwise agreed among the Borrowers and such successor. After a Co- Administrative Agent's or any Subsidiary or other Affiliate thereof as if it were not an the Payment Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated's resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 10.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Co-Administrative Agent or Payment Agent, including counsel fees and compensation of its sub- agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, their respective Related Parties in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by any of them while it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such was acting as Co-Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposesPayment Agent. Each Lender acknowledges that it has, independently and without reliance upon the Co-Administrative Agents or the Payment 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 Co-Administrative Agents or the Payment 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 or Agreement, any other Loan Document, any related agreement or any document furnished hereunder or thereunder. None of the institutions named as Syndication Agent or Co- Documentation Agents in the heading of this Agreement shall, in their capacities as such, have any duties or responsibilities of any kind under this Agreement.
Appears in 1 contract
Samples: NNG Inc
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Texas Commerce Bank of Texas, National Association is hereby appointed to act as Administrative Agent Agent, and Chase Chemical Bank is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF Agent, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default of which the Administrative Agent has actual knowledge acquired in connection with its agency hereunder; and (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent. No Agent or any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them then except for its or his or her own gross negligence or willful wilful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all 61 57 purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility to the Borrowers Borrower on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any the Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the BorrowersBorrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent acceptable to the BorrowersBorrower. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, having a combined capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent 62 58 and the retiring Agent shall be discharged from its duties and obligations hereunder. After any Agent's resignation hereunder, the provisions of this Article and Section 8.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. With respect to the Loans made by it hereunder, each of the Agents, in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers Borrower and (iii) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the BorrowersBorrower; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful wilful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents 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 Agents or any other Lender and based on such documents and 63 59 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 or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Facility Agreement (Texas Utilities Electric Co)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent Issuing Lenders all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; , (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder None of the indebtedness resulting therefrom for all purposes hereof until it Agents or the Borrowers shall have received notice from such be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing, and no provision in the Loan Documents and no course of dealing between the parties hereto shall be deemed to create any fiduciary duty owing to any Agent, any Lender, given as provided hereinany Borrower or any Subsidiary, or any of the transfer thereoftheir respective Affiliates, by any party hereto. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. Each of the Agents The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint from the Lenders a successor AgentAdministrative 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 affiliate of any such bank, which successor shall be acceptable to ViacomCBS (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.5 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of ViacomCBS; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. None of the Documentation Agents, the Syndication Agents, the Joint Lead Arrangers, the Joint Bookrunners or any managing agent shall have any duties, liabilities or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (ViacomCBS Inc.)
The Agents. In order to expedite the transactions contemplated by this Agreement, Chase Bank of Texas, National Association each Agent is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, on behalf of the Lenders. Each of the Lenders and the Issuing Lenders hereby irrevocably authorizes the Agents Administrative Agent to take such actions on its behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms and provisions hereof, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly authorized by the Lenders and the CAF AgentIssuing Lenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and the LC Disbursements and all other amounts due to the Lenders and the CAF Agent Issuing Lenders hereunder, and promptly to distribute to each Lender and the CAF Agent Issuing Lender its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection No with its agency hereunder; and (c) to distribute to each Lender and Issuing Lender copies of all notices, financial statements and other materials delivered by any Borrower pursuant to this Agreement as received by the Administrative Agent. Neither any Agent or nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted by any of them except for its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Borrower of any of the terms, conditions, covenants or agreements contained in this Agreement. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and the Issuing Lenders. Each of the Agents The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person Person or personsPersons. No Agent or Neither the Agents nor any of its their directors, officers, employees or agents shall have any responsibility to the Borrowers any Borrower on account of the failure of or delay in performance or breach by the other Agent any Lender or any Issuing Lender of any of its obligations hereunder or to the other Agent any Lender or any Issuing Lender on account of the failure of or delay in performance or breach by any other LenderAgent, the any other Agent Lender or Issuing Lender or any Borrower of any of their respective obligations hereunder or in connection herewith. Each of the Agents The Administrative Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders and the Issuing Lenders hereby acknowledge that the Agents Administrative Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, either the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right to appoint from the Lenders a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint from the Lenders a successor AgentAdministrative 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 affiliate of any such bank, which successor shall be acceptable to Viacom (such acceptance not to be unreasonably withheld). Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 9.5 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. With respect to the Loans made by it them and their LC Exposure hereunder, each of the Agents, Agents in its their individual capacity and not as an Agent Agents shall have the same rights and powers as any other Lender and may exercise the same as though it they were not an AgentAgents, and each of the Agents and their Affiliates affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary of their respective Subsidiaries or other any Affiliate thereof as if it they were not an AgentAgents. Each Lender and Issuing Lender agrees (i) to reimburse the Agents, on demand, Administrative Agent in the amount of its pro rata share (based on its Commitment hereunder Total Facility Percentage or, if after the Commitments date on which the Loans shall have been terminatedpaid in full, the amount of based on its outstanding LoansTotal Facility Percentage immediately prior to such date) of any reasonable, out-of-pocket expenses incurred for the benefit of the Lenders in its role as or the Issuing Lenders by the Administrative Agent, including reasonable counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Lenders, which shall not have been reimbursed by the Borrowers or on behalf of any Borrower and (iii) to indemnify and hold harmless each of the Agents Administrative Agent and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement Agreement, to the extent the same shall not have been reimbursed by the Borrowersor on behalf of Viacom; provided provided, that no Lender or Issuing Lender shall be liable to the Administrative Agent or any Agent such director, officer, employee or agent for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such the Administrative Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Issuing Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender or Issuing 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 and Issuing Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender or Issuing 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 or Agreement, any related agreement or any document furnished hereunder or thereunder. Neither the Documentation Agent, the Co-Syndication Agents, the Lead Arranger nor any managing agent shall have any duties or responsibilities hereunder in its capacity as such.
Appears in 1 contract
Samples: Credit Agreement (Viacom Inc)
The Agents. In order to expedite Each of the transactions contemplated by this Agreement, Chase Bank of Texas, National Association is Issuing Banks hereby appointed to act irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement to serve as administrative agent hereunder and Chase is hereby appointed to act as CAF Agentunder the other Loan Documents, on behalf of the Lenders. Each of the Lenders hereby irrevocably and authorizes the Agents such entity to take such actions on behalf of such Lender or holder and to exercise such powers as are specifically delegated to the Agents Administrative Agent by the terms of the Loan Documents, together with such actions and provisions hereofpowers as are reasonably incidental thereto. Each of the Issuing Banks hereby irrevocably appoints the entity named as Issuing Banks Agent in the heading of this Agreement to serve as the issuing banks agent hereunder and under the other Loan Documents and authorizes such entity to take such actions and to exercise such powers as are delegated to the Issuing Banks Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Person serving as the Administrative Agent is hereby expressly authorized by or the Lenders Issuing Banks Agent hereunder shall have the same rights and powers in its capacity as an Issuing Bank as any other Issuing Bank and may exercise the same as though it were not the Administrative Agent or the Issuing Banks Agent, and such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent or the Issuing Banks Agent hereunder and without any duty to account therefor to the Issuing Banks. The Administrative Agent and the CAF Agent, without hereby Issuing Banks Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting any implied authoritythe generality of the foregoing, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (a) to give notice on behalf of each of the Lenders to the Borrowers of any Event of Default of which neither the Administrative Agent nor the Issuing Banks Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has actual knowledge acquired occurred and is continuing, (b) neither the Administrative Agent nor the Issuing Banks Agent shall have any duty to take any discretionary action or to exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in connection No writing by the Required Issuing Banks (or such other number or percentage of the Issuing Banks as shall be necessary under the circumstances as provided in Section 9.02) or that the Issuing Banks Agent is required to exercise, provided that neither the Administrative Agent nor the Issuing Banks Agent shall be required to take any action that, in its opinion, could expose the Administrative Agent or the Issuing Banks Agent, as the case may be, to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan Documents, neither the Administrative Agent nor the Issuing Banks Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of the Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent, the Issuing Banks Agent or any of its directors, officers, employees or agents their Related Parties in any capacity. The Administrative Agent and the Issuing Banks Agent shall not be liable as such for any action taken or omitted not taken by any it with the consent or at the request of them except for the Required Issuing Banks (or such other number or percentage of the Issuing Banks as shall be necessary, or as the Administrative Agent or the Issuing Banks Agent, as the case may be, shall believe in good faith to be necessary, under the circumstances as provided in Section 9.02) or in the absence of its or his or her own gross negligence or willful misconduct. Neither the Administrative Agent nor the Issuing Banks Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent or the Issuing Banks Agent by the Borrower or an Issuing Bank, or and neither the Administrative Agent nor the Issuing Banks Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation herein made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection herewiththerewith, or be required to ascertain or to make any inquiry concerning (iii) the performance or observance by the Borrowers of any of the termscovenants, conditionsagreements or other terms or conditions set forth in any Loan Document, covenants (iv) the validity, enforceability, effectiveness or agreements contained genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this AgreementArticle IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or the Issuing Banks Agent, as applicable. The Agents Administrative Agent and the Issuing Banks Agent shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents shall, in the absence of knowledge to the contrary, be entitled to rely on upon, and shall not incur any instrument liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or document 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. The Administrative Agent and Issuing Banks Agent also may rely upon any statement made to it orally or persons. No Agent or any of its directors, officers, employees or agents shall have any responsibility by telephone and believed by it to the Borrowers on account of the failure of or delay in performance or breach be made by the other Agent or proper Person, and shall not incur any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, the other Agent or any Borrower of any of their respective obligations hereunder or in connection herewithliability for relying thereon. Each of the Agents Administrative Agent and the Issuing Banks Agent may execute any and all duties hereunder by or through agents or employees and shall be entitled to rely upon the advice of consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it with respect to all matters arising hereunder it, and shall not be liable for any action taken or suffered in good faith not taken by it in accordance with the advice of any such counsel, accountants or experts. Each of the Administrative Agent and the Issuing Banks 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 Lenders hereby acknowledge that Administrative Agent, the Agents Issuing Banks Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall be under no duty apply to take any discretionary action permitted to be taken by it pursuant such sub-agent and to the provisions Related Parties of the Administrative Agent, the Issuing Banks 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 or Issuing Banks Agent, as applicable. Without limiting the foregoing, the Issuing Banks Agent may appoint any Issuing Bank as a sub-agent of the Issuing Banks Agent for the purpose of holding any XX Xxxx Collateral. Each Issuing Bank agrees that, notwithstanding any such appointment of an Issuing Bank as a sub-agent of the Issuing Banks Agent, the Issuing Banks Agent shall retain exclusive dominion and control, including the exclusive right of withdrawal, over the XX Xxxx Collateral Account (which term, for purposes of this Agreement unless it paragraph and each other provision hereof, shall be requested include any deposit or other account in writing which any such sub-agent holds any XX Xxxx Collateral) and the XX Xxxx Collateral (which term, for the avoidance of doubt, shall include any portion thereof held by any sub-agent of the Issuing Banks Agent), except to do so by the Required Lendersextent such dominion and control shall have been delegated to such Issuing Bank as a sub-agent of the Issuing Banks Agent. Subject to the appointment and acceptance of a successor to the Administrative Agent as provided belowin this paragraph, either the Administrative Agent may resign at any time by notifying the Lenders Issuing Banks, the Issuing Banks Agent and the BorrowersBorrower. Upon any such resignation, the Required Lenders Issuing Banks shall have the right right, with the Borrower’s consent (which consent shall not be unreasonably withheld or delayed), to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Lenders Issuing Banks and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the LendersIssuing Banks, appoint a successor AgentAdministrative Agent which shall be a bank with an office in New York, having a combined capital and surplus of at least $500,000,000 New York, or an Affiliate of any such bank. Upon the acceptance of any its appointment as Administrative Agent hereunder by a successor banksuccessor, such successor With respect shall succeed to and become vested with all the Loans made by it hereunderrights, each powers, privileges and duties of the Agentsretiring Administrative Agent, in its individual capacity and not as an the retiring Administrative Agent shall have be discharged from its duties and obligations hereunder. The fees payable by the same rights and powers as any other Lender and may exercise Borrower to a successor Administrative Agent shall be the same as though it were not an those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent, and each of the Agents and their Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated’s resignation hereunder, the amount provisions of its outstanding Loans) of any expenses incurred this Article and Section 9.03 shall continue in effect for the benefit of the Lenders in its role as such retiring Administrative Agent, including counsel fees and compensation of its sub-agents and employees paid for services rendered 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. Subject to the appointment and acceptance of a successor to the Issuing Banks Agent as provided in this paragraph, the Issuing Banks Agent may resign at any time by notifying the Administrative Agent, the Issuing Banks and the Borrower. Upon any such resignation, the Issuing Banks shall have the right, with the Borrower’s consent (which consent shall not be unreasonably withheld or delayed), to appoint a successor. If no successor shall have been so appointed by the Issuing Banks and shall have accepted such appointment within 30 days after the retiring Issuing Banks Agent gives notice of its resignation, then the retiring Issuing Banks Agent may, on behalf of the LendersIssuing Banks, appoint a successor Issuing Banks Agent which shall not have been reimbursed 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 Issuing Banks Agent hereunder by a successor, such successor shall succeed to and become vested with all the Borrowers rights, powers, privileges and (i) to indemnify and hold harmless each duties of the Agents retiring Issuing Banks Agent, and any the retiring Issuing Banks Agent shall be discharged from its duties and obligations hereunder. After the Issuing Banks Agent’s resignation hereunder, the provisions of its directors, officers, employees or agents, on demand, this Article and Section 9.03 shall continue in effect for the amount benefit of such pro rata shareretiring Issuing Banks Agent, from its sub-agents and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements their respective Related Parties in respect of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action actions taken or omitted to be taken by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agentsthem while it was acting as Issuing Banks Agent. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender Issuing Bank acknowledges that it has, independently and without reliance upon the Agents or Administrative Agent, the Issuing Banks Agent, any other Lender Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender Issuing Bank also acknowledges that it will, independently and without reliance upon the Agents Administrative Agent, the Issuing Banks Agent or any other Lender Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Appears in 1 contract
Samples: Credit Agreement (Blockbuster Inc)
The Agents. In order to expedite the transactions contemplated by this AgreementSECTION 8.01. The Agents. Citicorp North America, Chase Bank of Texas, National Association Inc. is hereby appointed to act as Administrative Agent and Chase is hereby appointed to act as CAF Agent, Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee of any such Lender hereby irrevocably authorizes each of the Agents to take such actions on behalf of such Lender or holder assignee and to exercise such powers as are specifically delegated to the Agents such Agent by the terms and provisions hereofhereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Each Agent is hereby expressly authorized by the Lenders and the CAF AgentLenders, without hereby limiting any implied authority, (a) to receive on behalf of the Lenders and the CAF Agent all payments of principal of and interest on the Loans Loans, all payments and all other amounts due to the Lenders and the CAF Agent hereunder, and promptly to distribute to each Lender and the CAF Agent its proper share of each payment so received; (ab) to give notice on behalf of each of the Lenders to the Borrowers Borrower of any Event of Default specified in this Agreement of which the Administrative such Agent has actual knowledge acquired in connection No Agent or with its agency hereunder; (c) to distribute to each Lender copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by such Agent, (d) to enter into the Security Documents on behalf of the Lenders and (e) to claim all Obligations owed to any Lender against the Borrower in its own name for the purpose of any Security Documents. None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall be liable to the Lenders as such for any action taken or omitted to be taken by any of them except for to the extent finally judicially determined to have resulted from its or his or her own gross negligence or willful misconduct, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning the performance or observance by the Borrowers any Loan Party of any of the terms, conditions, covenants or agreements contained in this Agreementany Loan Document. The Agents shall not be responsible to the Lenders for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Agents may deem and treat the Lender which makes any Loan as the holder of the indebtedness resulting therefrom for all purposes hereof until it shall have received notice from such Lender, given as provided herein, of the transfer thereof. The Agents Each Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Requisite Lenders (or, when expressly required hereby, all the Lenders) and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. Each of the Agents Agent shall, in the absence of actual knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. No Agent or None of the Agents nor any of its directors, officers, employees or agents their Related Parties shall have any responsibility to the Borrowers Loan Parties on account of the failure of or delay in performance or breach by the other Agent or any Lender of any of its obligations hereunder or to the other Agent or any Lender on account of the failure of or delay in performance or breach by any other Lender, Lender or the other Agent or any Borrower Loan Parties of any of their respective obligations hereunder or under any other Loan Document or in connection herewithherewith or therewith. Each of the Agents Agent may execute any and all duties hereunder by or through agents any of its Related Parties or employees any sub-agent appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Lenders hereby acknowledge that the Agents no Agent shall be under no any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement any Loan Document unless it shall be requested in writing to do so by the Required Requisite Lenders. Subject to the appointment and acceptance of a successor Agent as provided below, either any Agent may resign at any time by notifying the Lenders Lenders, the Issuing Bank and the BorrowersBorrower. Upon any such resignation, the Required Requisite Lenders shall have the right to appoint a successor Agent acceptable to the Borrowerssuccessor. If no successor shall have been so appointed by the Required Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the LendersLenders and the Issuing Bank, appoint a successor AgentAgent which shall be a bank with an office in New York, New York, having a combined capital and surplus of at least $500,000,000 500.0 million or an Affiliate of any such bank. Upon the acceptance of any appointment as an Agent hereunder by such a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. After an Agent's resignation hereunder, the provisions of this Article and Section 10.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent. With respect to the Loans made by it hereunder, each of the Agents, Agent in its individual capacity and not as an Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not an Agent, and each of the Agents such Agent and their its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrowers Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent. Each Lender agrees (i) to reimburse the Agents, on demand, in the amount of its pro rata share (based on its Commitment hereunder or, if the Commitments shall have been terminated, the amount of its outstanding Loans) of any expenses incurred for the benefit of the Lenders in its role as Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, which shall not have been reimbursed by the Borrowers and (i) to indemnify and hold harmless each of the Agents and any of its directors, officers, employees or agents, on demand, in the amount of such pro rata share, from and against any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in any way relating to or arising out of this Agreement or any action taken or omitted by it under this Agreement to the extent the same shall not have been reimbursed by the Borrowers; provided that no Lender shall be liable to any Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Agent or any of its directors, officers, employees or agents. Each Lender agrees that any allocation made in good faith by the Agents of expenses or other amounts referred to in this paragraph between this Agreement and the Facility A Credit Agreement shall be conclusive and binding for all purposes. Each Lender acknowledges that it has, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder. Notwithstanding anything to the contrary in this Agreement, neither CGMI, as a Lead Arranger, in such capacity, nor CGMI or Banc One, as Syndication Agents, or RFC, as Documentation Agent, shall have any obligations, duties or responsibilities, and shall incur any liabilities, under this Agreement or any other Loan Document.
Appears in 1 contract
